PEOPLE v. BAKER

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Anji Lynn BAKER, Defendant and Appellant.

No. C024609.

Decided: August 12, 1998

John L. Dodd, under appointment by the Court of Appeal, Tustin, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael Weinberger and Jean M. Marinovich, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Anji Lynn Baker appeals following his conviction for two counts of forcible sodomy and one count of forcible oral copulation.   He complains of the use of Evidence Code 1 section 1108 to admit evidence of his prior sexual offenses.   He also contends the trial court erred in (1) denying his Marsden 2 motion to have counsel replaced due to irreconcilable conflict, (2) denying his Wheeler 3 motion concerning the prosecution's use of peremptory challenges on black prospective jurors, and (3) disallowing evidence of the victim's prior sexual conduct.

In the published portion of the opinion, we conclude the trial court properly admitted evidence of defendant's prior sexual offenses under section 1108.   In reaching this conclusion, we reject defendant's contention that admission of evidence of one of the prior sexual offenses was improper because defendant had been previously tried and acquitted of the offense.   In an unpublished portion of the opinion, we reject defendant's remaining contentions of error.   We shall therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

By information filed in February 1996, defendant (age 33) was charged with (1) count one:  kidnapping with the intent to commit forcible oral copulation and sodomy (Pen.Code, § 208, subd. (d));  (2) count two:  forcible sodomy (Pen.Code, § 286, subd. (c));  (3) count three:  forcible oral copulation (Pen.Code, § 288a, subd. (c));  (4) count four:  forcible sodomy (Pen.Code, § 286, subd. (c)).  It was alleged defendant personally used a deadly weapon, a knife, in the commission of each offense (Pen.Code, § 12022.3), and that each offense was a serious felony (Pen.Code, § 1192.7) and came within the meaning of the habitual sex offender statute (Pen.Code, § 667.71).

At the inception of the jury trial, the prosecutor filed a motion to allow evidence of prior sex offenses by defendant (for which defendant was not convicted) pursuant to sections 1108 4 and 1101, subdivision (b).5  Defendant sought exclusion of the evidence.   The trial court ruled some of the evidence admissible, under section 1108, but not section 1101, subdivision (b).

The evidence adduced at trial, with respect to the charged offenses, showed as follows:

The victim, 20-year-old Theresa A., testified that on September 1, 1995, around 8 a.m., she went to a local homeless shelter for coffee and doughnuts.   Defendant, who was a stranger, approached in his Volkswagen convertible and beckoned her.   They talked for about 20 minutes and then she accompanied him to a store where he bought cigarettes and vodka.   They drove to Miller Park and continued conversing.   During their time there, they shared a “friendly hug.”

At trial, the victim testified defendant tried to kiss her, but she pulled away.   When reminded of her preliminary hearing testimony, she recalled defendant did kiss her briefly, but she did not kiss back.   She initially felt flattered by defendant's attention but began to feel uncomfortable.   Defendant pulled out a knife to adjust his car stereo speaker.   A friend of defendant came by and chatted with him.   The friend testified at trial that he assumed the victim was defendant's girlfriend, though he did not see them touch.   After the friend left, defendant and the victim got in the car (the convertible top of which was down) to leave.   Defendant pulled the knife on the victim, holding the blade near her rib.   She saw a Sheriff's bus and clean-up crew nearby, but she was afraid and did not try to escape.   When she asked defendant why he was doing this, he responded “It's the gangster in me.”

Defendant drove to a grassy area off of Front Street and ordered her out of the car.   He led her down a dirt path to a mattress on the ground.   He told her to undress.   She did so because of his “dirty looks” and the knife.   Defendant told her to “suck his dick.”   The victim tried to dissuade him, but succumbed because she was afraid.   Defendant held the knife in his hand during the oral copulation.   Defendant also sodomized the victim, though she said “Please don't.”   He sodomized her twice during the assault, which lasted for hours.   The victim testified she burned herself with the cigarette on her wrist, in response to defendant's order to do so.

Afterwards, defendant drove the victim home, stopping to buy cigarettes on the way.   She was in pain and waited in the car.   Defendant did not act like anything was wrong.   When he dropped her off, he told her he would return at 4 p.m. She openly took a paper with his name on it, planning to have him arrested.

The victim called the police.   She had abrasions on her buttocks, semen on her lip and anus, and a tear around the rectum.   The physical findings were consistent with forcible sodomy.

The police testified that defendant, upon his arrest, said he had been working in Woodland.   While handcuffed, he tried to reach into his back pocket.   He told police he was reaching for his wallet, but the pocket contained only a knife.   Defendant's employer testified he did not work that day.

Before the victim's testimony at trial, three other women testified to prior sexual assaults by defendant, which were not charged offenses in this case, as follows:

Ida J. testified she first met defendant in a laundromat in August 1983.   They talked.   The next morning, she went to his apartment, as he had offered to buy her breakfast.   She accompanied him to a store for alcohol.   Back at defendant's place, he drank the alcohol, pulled a gun on Ida, told her to undress, raped her, sodomized her, and forced her to orally copulate him.   After a couple of hours, he let her leave, and she called the police.   The investigating officer testified in the present trial that an air pistol was found in defendant's apartment, and that defendant claimed Ida had consented to the sex, asked for money, and became angry when defendant said he did not have any money and asked if she were a prostitute.   Defendant told police he displayed the gun because she threatened to send over a “ dude.”   Cross-examination of Ida in the present trial revealed that at the time of her encounter with defendant, Ida was 42 years old (about 20 years older than defendant), the mother of six grown children, and had recently left her husband.   Pursuant to stipulation, the jury in the present case was told that defendant was criminally prosecuted on Ida's complaint and went to trial, and the jury returned deadlocked, with a ten-to-two vote in favor of acquittal.   The trial court granted the prosecution's motion to dismiss the case due to insufficient evidence.6

Amber H. testified she lived in the same neighborhood as defendant in August 1987, when she agreed to go for a ride with him.   Defendant hinted they might have sex, to which Amber indicated maybe, because she thought he might leave her stranded if she said no.   Defendant purchased cocaine, and they went to his friend's home and watched television.   Amber voluntarily kissed defendant.   Later, defendant and Amber returned to her apartment, which had almost no furnishings because she was in the process of moving.   They sat on a blanket and watched television.   When she brought him a glass of water, defendant pulled off her tank top.   She bolted for the door.   He stopped her.   She screamed.   He pushed her against the wall, choked her, threw her to the floor, and hit her in the head with a broomstick.   Defendant forced her to orally copulate him.   She vomited.   Defendant alternated between putting his penis in her vagina and her mouth.   He continuously slapped her and wanted her to say “Hit me hard, Daddy.”   Defendant tried to sodomize her but stopped when she screamed.   When defendant left, he took her television to insure she would not leave.   Amber called the police.

The investigating officer testified in this trial that defendant claimed Amber had consented to the sex acts.   On cross-examination, the defense elicited from Amber that at the time of the incident with defendant in 1987, Amber was sexually active and was pregnant by a man whom she did not consider to be a boyfriend.   Amber also acknowledged she knew some karate moves, but she did not try them on defendant.   The jury in the present case was told that criminal charges were brought concerning the Amber incident, but she was unable to travel to Sacramento for trial because her baby was due to be born, and the case was dismissed and was never refiled.

Nicole R. testified she was an acquaintance of defendant in November 1994, when he said he could help her with her job search.   They met at night at her boyfriend's deserted office, where she was residing.   They had pizza, and defendant consumed alcohol and marijuana.   Defendant said he “wanted” her, but she said no.   Defendant watched a video while Nicole, who was not feeling well, fell asleep at one end of the couch.   She woke to find defendant pulling at her pants.   She tried to scream.   Defendant threatened to break her neck.   He alternated between putting his penis in her mouth and her vagina.   He tried to sodomize her, but she jerked away, and he did not continue.   After about four hours, defendant folded her clothes, emptied the trash, and left.   Nicole called the police.   The jury in the present case was told that criminal charges were brought against defendant concerning Nicole's accusation, and he was acquitted by a jury.

In the present case, defendant testified in his own behalf.   He admitted a prior felony conviction for possession of narcotics for sale.   Regarding the present charged offenses, defendant denied the kidnapping and weapon use.   He admitted the sex acts but said they were consensual.   According to defendant, the victim was accidentally burned on the wrist when he tried to light her cigarette with his and an ash fell on her wrist.   Defendant said that after sex, the victim expressed interest in a relationship and concern that defendant was “brushing her off.”   She complained her husband, who was in jail, was physically abusive.   Defendant said he gave her a social security paper to reassure her he would see her again.   After dropping off the victim, defendant drove to his workplace, where he was scolded for missing work.   He then went to his wife's home (from whom he was estranged) to pay child support, and was on his way to his girlfriend's house when the police stopped him.   He told the police that he was coming from work, not that he had been working.   He testified he told the police about the knife in his pocket, and he tried to reach for the knife only to hand it over to the officer.

Regarding the three women who made accusations of prior offenses against him, defendant admitted the sex but claimed each woman was a willing participant.   He claimed Ida only brought charges in retaliation for not getting paid for sex.   He said Amber and he got along fine until the cocaine ran out and her demeanor changed, though he did not think she was angry at him.   Defendant testified he did not remember but thought he may have taken Amber's television at her request, to sell it for money to buy cocaine.   He did not remember telling a detective that he took it to make sure this was not a one-night stand.   Defendant said Nicole told him she was not a “one night stand,” but he thought they parted on good terms.   Defendant introduced evidence that Amber and he both tested positive for cocaine on the date of that incident, and that Nicole tested positive for methamphetamine.

Karen C. testified defendant was formerly her boyfriend, and he never forced her to do anything she did not want to do.   She voluntarily engaged in vaginal, anal and oral sex with him.   At times, she told him to stop, and he stopped.

Defendant's friend, Donald White, testified he never knew defendant to force a woman to leave with him but did not know what defendant did behind closed doors.

The jury returned guilty verdicts on count two (forcible sodomy), count three (forcible oral copulation), and count four (forcible sodomy).   The jury also found true the allegation that defendant had committed at least one act within the meaning of Penal Code section 667.61, subdivision (c).   The jury did not reach a unanimous verdict on count one (kidnapping) or the weapon enhancements, and the court declared a mistrial.

Defendant was sentenced to 26 years in prison-consecutive upper terms of eight years for counts two, three and four, and a two-year midterm for a probation violation in a prior drug offense (which was the subject of a petition filed in September 1995).

DISCUSSION

I.-II. **

III. Section 1108

Defendant makes various arguments with respect to admission under section 1108 (fn.4, ante ) of the evidence of prior sexual offenses, i.e., the prior sexual incidents with Ida, Amber and Nicole.   We shall conclude defendant fails to show any error.

Defendant first argues admission of evidence pursuant to section 1108 deprived him of his constitutional due process rights, by allowing him to be tried on character evidence.   Second, defendant argues section 1108 impermissibly deprived him of the presumption of innocence by allowing evidence of prior criminal accusations against him to be proven by a mere preponderance of the evidence.   Third, defendant argues section 1108 denied him his right to equal protection of the law.   Fourth, defendant claims section 1108 violates the constitutional prohibition against double jeopardy by allowing the prosecution to retry defendant on prior charges of which he was previously acquitted.10

 Insofar as defendant makes a facial attack on section 1108, as opposed to its application to these facts, we have recently rejected most of these arguments in People v. Fitch (1997) 55 Cal.App.4th 172, 63 Cal.Rptr.2d 753 (which was published the day before defendant filed his reply brief in this appeal), and see no reason to reconsider that decision.   Thus, in Fitch we held section 1108, which permits the admission of character evidence to prove disposition, does not violate due process.  (Id. at pp. 178-184, 63 Cal.Rptr.2d 753.)   We further held section 1108 does not lessen the prosecution's burden to prove guilt beyond a reasonable doubt.   (Id. at pp. 182-183, 63 Cal.Rptr.2d 753.)   We said section 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial, because section 1108 by its own terms subjects the evidence to exclusion under section 352.11  (Id. at p. 183, 63 Cal.Rptr.2d 753.)   We also held section 1108 did not allow the defendant to be convicted due to his status rather than his act, because the jury was instructed it could not convict him simply because it found he had a character trait that tends to predispose him to commit the crime charged.  (Id. at pp. 183-184, 63 Cal.Rptr.2d 753.)   We also held section 1108 does not violate equal protection, because the Legislature determined the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant's commission of other sex offenses.  (Id. at pp. 184-185, 63 Cal.Rptr.2d 753.)   We said the Legislature was free to address a problem one step at a time or even to apply the remedy to one area and neglect others.  (Ibid.)

 Defendant's brief gives us no reason to reconsider our decision in Fitch.   We note that here, as in Fitch, the jury was instructed that it could not convict defendant simply based on character.   Thus, the jury in the present case was instructed in part:  “You may not convict the Defendant merely because you believe that he committed another offense or because you believe that he has a character trait that tends to predispose him to committing the charged offense.  [¶] Those assaults are not charged in this case and you may not find the Defendant guilty of the charges here because you feel he should have been found guilty of the earlier alleged assault.  [¶] You may, however, consider the evidence, to the extent you find it to be true, as tending to show the defendant's character or propensity to commit forced sexual assault.”   We presume the jury followed this instruction.  (People v. Fitch, supra, 55 Cal.App.4th at p. 184, 63 Cal.Rptr.2d 753.)

 Defendant argues section 352 provides no effective check or balance to section 1108, because evidence of past sexual conduct inherently creates a substantial danger of undue prejudice, confusing the issues, and misleading the jury.   We disagree.   With respect to prejudice, “ ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’  [Citations.]  ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors.  [Citation.]’  [Citation.]”   (People v. Zapien (1993) 4 Cal.4th 929, 958, 17 Cal.Rptr.2d 122, 846 P.2d 704.)

 Defendant argues section 1108 deprives him of the presumption of innocence by allowing evidence of prior criminal accusations to be proven by a mere preponderance of the evidence.   We agree (and the jury was instructed) that section 1108 evidence is subject to the preponderance-of-the-evidence standard of proof.  (§ 115; 12  People v. Tewksbury (1976) 15 Cal.3d 953, 965, 127 Cal.Rptr. 135, 544 P.2d 1335 [collateral facts need not be proven beyond a reasonable doubt];  People v. McClellan (1969) 71 Cal.2d 793, 804, 80 Cal.Rptr. 31, 457 P.2d 871 [during guilt trial, evidence of prior crimes, offered to show common plan, may be proved by a preponderance of the evidence];  People v. Lisenba (1939) 14 Cal.2d 403, 429-430, 94 P.2d 569 [evidence of prior crime, admitted to show motive for current charged offense, was not subject to proof beyond a reasonable doubt].)

In People v. Fitch, supra, 55 Cal.App.4th at pp. 182-183, 63 Cal.Rptr.2d 753, we did not expressly discuss the preponderance of evidence standard.   Nevertheless, the fact that the prior offenses can be established by a preponderance of the evidence does not alter our conclusion that section 1108 does not impermissibly reduce the prosecution's burden of proof.   Here, as in Fitch, the jury was instructed that in order to convict defendant of the current offense, it must find defendant guilty beyond a reasonable doubt, and it could not convict defendant merely because it believed he committed another offense or because it believed he had a character trait disposing him to commit the charged offense.

 Defendant argues that section 1108 violates the double jeopardy clause by allowing him to be retried on charges of which he was already acquitted (the Nicole R. case).   Assuming for the sake of argument that the issue has been preserved for appeal, the argument fails, because defendant was not retried on those charges.   Indeed, the jury was instructed:  “Those assaults are not charged in this case and you may not find the Defendant guilty of the charges here because you feel he should have been found guilty of the earlier alleged assault.”   We note the California Supreme Court has held the double jeopardy clause is not violated by use at the penalty phase of a capital prosecution of past criminal conduct for which the defendant has been convicted and punished.  (E.g., People v. Osband (1996) 13 Cal.4th 622, 711, 55 Cal.Rptr.2d 26, 919 P.2d 640;  People v. Melton (1988) 44 Cal.3d 713, 756, fn. 17, 244 Cal.Rptr. 867, 750 P.2d 741.)

In his reply brief, defendant develops an argument that the relitigation of his intent, an ultimate fact in the prior case which ended in acquittal, violated the constitutional prohibition of double jeopardy because the acquittal in the prior case barred relitigation of the issue in the present case.   This argument appears to derive from the general legal principle, cited in the Attorney General's brief, that the double jeopardy clause 13 prevents the state from (1) retrying final verdicts, (2) exacting multiple punishments, and (3) relitigating for criminal purposes any facts finally resolved in the defendant's favor in a prior criminal proceeding (the “collateral estoppel” rule).  (People v. Melton, supra, 44 Cal.3d at p. 756, fn. 17, 244 Cal.Rptr. 867, 750 P.2d 741.)   The People argued none of the three prohibitions was implicated in this case.   With respect to the third, the People argued the evidence in this case was relitigated for an evidentiary purpose, not a criminal purpose.   In his reply brief, defendant calls this sophistry.

Defendant relies on Ashe v. Swenson (1970) 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, which held that the due process clause incorporates the doctrine of collateral estoppel.   There, masked gunmen robbed several men engaged in a poker game.   The defendant was tried in state court for the robbery of one of the players.   He was acquitted.   Six weeks later, the defendant was brought to trial again in state court, this time for the robbery of another participant in the same poker game.  (Id. 397 U.S. at pp. 439-440, 90 S.Ct. at pp. 1192-1193, 25 L.Ed.2d at pp. 472-473.)   The United States Supreme Court held the federal rule of collateral estoppel, which is embodied in the double jeopardy clause, barred the prosecution, since the single rationally conceivable issue in dispute before the jury was whether the defendant had been one of the robbers, and although the victim was different, under the circumstances the name of the victim had no bearing whatever upon the issue of whether the defendant was one of the robbers.  (Id. 397 U.S. at pp. 444-447, 90 S.Ct. at pp. 1194-1196, 25 L.Ed.2d at pp. 475-477.)  Ashe stated the record was devoid of any indication that the first jury could rationally have found that a robbery had not occurred, or that the victim had not been a victim.  (Id. 397 U.S. at p. 445, 90 S.Ct. at p. 1195, 25 L.Ed.2d at p. 476.)

However, more recent United States Supreme Court authority (cited by the People in this appeal) holds that Ashe does not apply where, as here, the presentation of the issue after acquittal involves a lesser standard of proof.   Thus, Dowling v. United States (1990) 493 U.S. 342, 107 L.Ed.2d 708, 107 L.Ed.2d 708 held that an acquittal in a criminal case did not preclude the government from relitigating an issue when it was presented in a subsequent action governed by a lower standard of proof.   There, the defendant, who had allegedly robbed a bank while armed and wearing a ski mask, was tried in federal court.   During the trial, the prosecution, relying on a federal rule of evidence which allows evidence of prior bad acts for purposes other than character evidence, offered testimony by a woman who identified the defendant as a masked man who entered her home, armed and masked, two weeks after the bank robbery and lost his mask in a struggle with her.   The prosecution offered the evidence to strengthen the identification of the defendant as the bank robber.   The trial court allowed the evidence and told the jury that the defendant had been acquitted of charges stemming from intrusion into the woman's home.   The United States Supreme Court upheld the admission of the evidence, rejecting the defendant's argument that it violated the double jeopardy clause.  Dowling expressly declined to extend Ashe. (Dowling, supra, 493 U.S. at pp. 347-349, 110 S.Ct. at pp. 671-673, 107 L.Ed.2d at pp. 717-718.)  Dowling said that to introduce evidence on this point at the bank robbery trial, the government did not have to demonstrate that Dowling was the man who entered the home beyond a reasonable doubt.  (Ibid.) The Dowling court noted its decision was consistent with other cases holding that “an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.”  (Id. 493 U.S. at p. 349, 110 S.Ct. at p. 672, 107 L.Ed.2d at p. 718.)

Here, the prior offenses were subject to a lower standard of proof (preponderance of the evidence) in their use as collateral evidence in the prosecution of defendant for different offenses.   Thus, there is no double jeopardy violation.

Defendant argues Dowling is distinguishable because the evidence proffered there was proffered to show identification and modus operandi pursuant to the federal equivalent of section 1101, subdivision (b) (fn.5, ante ), and here the trial court denied admission of the evidence under section 1101, subdivision (b).   This is not a basis for distinguishing Dowling on the double jeopardy issue.

We conclude defendant fails to show that admission of section 1108 evidence violated any of his constitutional rights.

 Defendant also appears to complain that evidence of his prior sexual offenses should have been excluded under section 352 which is incorporated in section 1108.  (See fns. 4 and 11, ante.)   The trial court's exercise of discretion in admitting evidence under section 352 must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.  (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124, 36 Cal.Rptr.2d 235, 885 P.2d 1.)

We consider the points raised by defendant.

 Defendant complains his prior accusers have grown up and presented themselves in this trial as mature, respectable citizens, unlike the young women of questionable reputation/credibility he suggests they used to be.   However, defendant was able to explore this on cross-examination.   Indeed, to support his point on appeal concerning his accusers' past lifestyles, defendant cites their cross-examination testimony.   We see no error.

 Defendant suggests the prior incidents were remote.   However, although one prior incident dated back 13 years, the interim was not incident-free.   Thus, the other two prior incidents occurred nine years and one year before the charged offense.

Defendant argues Ida was unable to recall many aspects of the alleged rape that took place over 13 years ago.   He fails to explain how this hurt him.   Instead, he cites Ida's failure to remember minor matters, such as what time they left for the store, and whether she and defendant discussed the age difference between them.   With respect to Amber, defendant argues the admission of Amber's accusation now, “nine years later, when the evidence had all but dissipated,” was unduly prejudicial because he was unable to refute the allegations.   Defendant cites no specific instance, and the record fails to bear out his claim that the evidence had dissipated.   Defendant asserts, without amplification, that evidence of the incident involving Nicole was unduly prejudicial and needlessly time consuming.   We see no error.

 Defendant complains the prosecution started its case with the testimony of the three prior accusers rather than Thersa A., the victim of the charged offenses.   Defendant cites no authority supporting this supposed unfairness and we see no error.

 Defendant complains the prosecutor in closing argument stated twice:  “We're proving the Defendant raped because he is a rapist [using the term in a generic meaning of sexual offense].”   Defendant also claims the prosecutor in closing argument depicted defendant as physically abusive, gratuitously violent, a sexual predator, and an arrogant egomaniac so full of nerve that he sued the county when he was acquitted of the prior charges, etc.   Defendant says the prosecutor's theory was to establish defendant's character and status as a “rapist” and “sodomist” and that he was acting in conformity with that character.   However, we need not decide whether the prosecutor crossed the line of permissible argument, because defendant failed to object in the trial court to any of the prosecutor's remarks, and thus defendant has waived the matter.  (People v. Medina (1990) 51 Cal.3d 870, 895, 274 Cal.Rptr. 849, 799 P.2d 1282.)

 Defendant considers it significant that the trial court declined to admit the evidence under section 1101, subdivision (b), footnote 5, ante.   He implies that if the evidence is not similar enough to be admitted under section 1101, it should not be admitted under section 1108.   If that is defendant's argument, it is without merit.   Under his reasoning, section 1108 would be superfluous.   We note the trial court did not give the prosecution everything it wanted;  the court excluded evidence of another prior assault.

 Defendant points out he was acquitted in the case involving Nicole, and the jury which deliberated the Ida incident voted ten-to-two in favor of acquittal.   However, these facts were brought to the jury's attention.   The acquittal and deadlock did not compel exclusion of the evidence.   Even an acquittal is not a finding of innocence.  (Dowling v. United States, supra, 493 U.S. at p. 349, 110 S.Ct. at p. 672, 107 L.Ed.2d at p. 718;  People v. Tatum (1962) 209 Cal.App.2d 179, 186, 25 Cal.Rptr. 832.)   An acquittal is “ ‘ “merely ․ an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.” ’ ”   (People v. Tatum, supra, 209 Cal.App.2d at p. 186, fn. 2, 25 Cal.Rptr. 832.) As indicated, evidence admitted under section 1108 is not subject to the standard of proof beyond a reasonable doubt, but rather the preponderance of evidence standard.   As indicated, section 1108 does not lessen the prosecution's burden of proving the defendant guilty of the charged offense beyond a reasonable doubt.  (People v. Fitch, supra, 55 Cal.App.4th at pp. 182-183, 63 Cal.Rptr.2d 753.)

In a supplemental letter brief, defendant argues this case is similar to People v. Harris (1998) 60 Cal.App.4th 727, 70 Cal.Rptr.2d 689, which was decided after initial briefing in this appeal.   In Harris, we held the trial court abused its discretion in admitting evidence of a prior sex offense under section 1108, in the prosecution of a mental health nurse for sex offenses involving patients.   However, Harris does not compel reversal in this appeal.   In Harris, the prior offense involved a gruesome attack on a female tenant in an apartment complex managed by the defendant, but the jury in Harris was presented with an incomplete and distorted description of the prior incident.  (Id. at p. 733, 70 Cal.Rptr.2d 689.)   We concluded the evidence was extremely inflammatory.   The charged offenses involved a breach of trust that was not shocking (accusations that the defendant licked and fondled an incapacitated woman and a former sex partner), while the evidence of the prior event incoherently described a vicious attack on a stranger without fully explaining the defendant's role.  (Id. at p. 738, 70 Cal.Rptr.2d 689.)   There was a probability of confusion, since the jury may have speculated as to the reason why the defendant was convicted only of burglary with infliction of great bodily injury and not convicted of rape or other offenses.  (Ibid.) The prior event was remote, having occurred 23 years earlier, with no similar offenses in the interim.  (Id. at p. 739, 70 Cal.Rptr.2d 689.)   The evidence necessitated lengthy jury instructions.   The evidence of the very dissimilar event had little probative value;  the evidence that the defendant committed a violent rape of a stranger, as the jury was led to believe, did not bolster the patients' credibility nor detract from the evidence impeaching their stories.  (Id. at p. 740, 70 Cal.Rptr.2d 689.)   Thus, Harris is distinguishable from this case.

In his supplement brief, defendant repeats the arguments we have already addressed.   He also argues the evidence was inflammatory and unduly prejudicial.   We disagree.   He claims the witnesses' appearance and emotional display at trial gave a distorted description of events.   He cites nothing supporting this claim.

 Defendant argues there was a probability of confusion because the jury knew defendant had not been punished for the prior charges, and the prosecutor told the jury in closing argument that defendant was “guilty of each one of the crimes charged, and it is your responsibility now to hold him accountable for his conduct on the 1st of September, 1995.”   We disagree with defendant that the jury would be inclined to punish defendant for the past rather than current offenses.   Defendant was charged with four counts in the September 1, 1995, incident, and it is thus apparent the prosecutor was referring to the current charges, and in any event defendant waived the issue by failing to object in the trial court.   The instructions made clear to the jury that it could not convict defendant for the prior offenses or find him guilty of the current charges because the jury felt he should have been found guilty of the prior offenses.14  We see no probability of confusion.

Defendant asserts the evidence was time consuming, taking up 300 pages of the reporter's transcript, and cumulative.   We disagree that the evidence was unduly time consuming or cumulative.

We conclude defendant fails to show error in admission of the evidence under section 1108.   We therefore need not address defendant's argument concerning harmless error analysis.

IV.-V. ***

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.  FN1. Undesignated statutory references are to the Evidence Code.

2.   People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.

3.   People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.

4.   Section 1108 provides in part:  “(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․”

5.   Section 1101 provides:  “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or his 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.”

6.   Defendant repeatedly and very wrongly characterizes this as an acquittal.   Of the three prior offenses, there was only one acquittal, not the two acquittals he claims on appeal.

FOOTNOTE.   See footnote *, ante.

10.   Mixed in with his due process argument, defendant asserts in passing that section 1108 violates the constitutional prohibition against cruel and unusual punishment.   We disregard this claim perfunctorily asserted without indication it is intended to be a discrete contention.  (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19, 32 Cal.Rptr.2d 762, 878 P.2d 521.)

11.   Section 352 provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

12.   Section 115 provides in part:  “Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”

13.   The federal and state double jeopardy clauses provide that the state cannot place a person “twice ․ in jeopardy [of life and limb]” for the same offense.  (U.S. Const., Amend.   V;  Cal. Const., art.   I, § 15.)

14.   The jury was instructed in part:  “You may not convict the Defendant merely because you believe that he committed another offense, or because you believe that he has a character trait that tends to predispose him to committing the charged offense.  [¶] Those assaults are not charged in this case and you may not find the Defendant guilty of the charges here because you feel he should have been found guilty of the earlier alleged assaults․  [¶] The question ․ before you, is whether the Defendant is guilty of the crime charged in this case, not whether he's guilty of any other offense.”

FOOTNOTE.   See footnote *, ante.

SIMS, Acting Presiding Justice.

SCOTLAND, and HULL, JJ., concur.

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