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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Robert Christian NEWMAN, Defendant and Appellant.

No. A038691.*

Decided: March 30, 1988

Francia M. Welker, Oakland, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John Sugiyama, Asst. Atty. Gen., Ann K. Jensen, Supervising Deputy Atty. Gen., Sharon G. Birenbaum, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant Robert Christian Newman appeals from a judgment of conviction entered upon a jury verdict finding him guilty of attempted rape (Pen.Code, §§ 261, subd. (2), 664),2 a lesser included offense of the charged crime of rape.3  The primary issue on appeal concerns the admissibility of evidence of a response defendant made to a previous and unrelated charge of sexual misconduct, which response is similar to the explanation he gave for the present offense.   We find such evidence admissible under People v. Ricketts (1970) 7 Cal.App.3d 441, 86 Cal.Rptr. 647, and affirm.


In the early evening of February 22, 1985, Karen K. and defendant passed each other on the street in downtown Oakland.   Each turned around and defendant started a conversation.   Defendant complimented Karen on her appearance and asked if she would have lunch with him.   Karen rejected the offer.   Defendant continued the conversation during the course of which he repeatedly asked Karen for her telephone number and suggested a platonic relationship.   Feeling “more at ease,” and trusting defendant, Karen finally gave him her telephone number.   After about 45 minutes, Karen said she had to leave.   Defendant asked for a ride to his nearby apartment.   Karen said no, but defendant “kept asking,” at one point getting on his knees and jokingly begging her.   She finally relented and drove defendant to his apartment.

At the apartment, Karen gave in to defendant's persistence and agreed to join him for a drink.   Inside they sat on the couch talking.   When defendant put his hand on her knee, Karen rejected the advance telling defendant “he was blowing it” and that she was not that “kind of person.”

Defendant stopped touching Karen and they continued their conversation.   At some point he played a tape containing a song by Prince entitled “Erotic City” and began to dance in a suggestive manner.   Because she knew the words to the song, Karen became frightened and picked up her keys to leave.

Defendant placed himself in front of Karen, touched her hair, placed his hand under her skirt and attempted to kiss her.   Karen tried to push defendant away but he held her down.   She managed to “kick[ ] him off” but as she moved toward the couch he was able to grab and choke her so she could not breathe.

Again Karen pushed defendant away.   Calling her names, such as a bitch, he managed to catch her and choke her once again.   Believing she would be killed, Karen quit struggling.   Defendant pushed her to the floor, removed both his and her clothing and inserted his penis in her mouth and subsequently into her vagina.   After he withdrew, defendant said, “ ‘I can't be doing this,” and said that alcohol was the cause.

Karen was allowed to dress and defendant walked her to her car.   Defendant asked if they could be “friends;”  after she was safely in the car, Karen answered “no.”

Defendant corroborated the story of his meeting Karen and the ensuing conversation on the street except he denied having begged for a ride home.   He described the tone of their conversation as “very positive.”  “We both liked each other.”   He believed she “obviously liked” him for she “opened up” to him about her previous relationship.

At some point, Karen said she was going to a party where she hoped there would be cocaine.   Defendant said he probably could get cocaine for her and suggested they could “party” at his place.   Karen said that the drug sexually aroused her and that she was not sure she wanted to be with defendant in that state.   Seeing a “potential there to possibly have sex,” defendant continued to talk about himself and asked if she would come to his home.   Karen told defendant she thought he was attractive and sexy.   Eventually she agreed to go to his apartment.

At the apartment, defendant turned on the stereo and danced, but denied dancing in a sexual manner.   He had a drink and made calls to locate some cocaine but was unsuccessful.   Defendant then sat down with Karen on the couch.   They kissed;  she did not resist.   They conversed, then he kissed her again.   She responded.   At some point he lay down on top of her and they engaged in heavy petting.   Defendant believed they would then have intercourse.   As he tried to put his arm under her dress, however, she resisted and grabbed his arm.   He persisted because he was stimulated and desired to have sex;  they wrestled to the floor.   They cursed one another.   They were both angry, but Karen did not cry:  “she was very aggressive and angry.”   At no time did he expose his penis or have either vaginal intercourse or oral copulation with Karen.   Defendant walked with Karen back to her car.   He apologized and said that he would like to call her again.

On cross, it was elicited from defendant that in 1983 he spoke with Oakland Police Sergeant Aloe during an investigation of a sexual charge.   Defendant told the officer that he had dated the woman a few times.   He invited her to his apartment and she had voluntarily come.   After a “friendly conversation” he began to massage and kiss her.   She responded “in a positive way.”   Believing she was “ready,” he reached under her skirt, at which point she resisted and pushed his arm away.   Defendant “persisted” and tried to remove her panties a second time.   She grabbed his arm once again, but he tried a third time.   Defendant then became “forceful.”   The woman “demanded money.”   Defendant became angry and more forceful.   Defendant called her “a bitch” and other names.   Defendant felt “teased” and mislead into believing he would have sexual relations with the woman.   Defendant then told the woman that he did not want her in his “god damned house” and physically took her outside.   He did not hit her.   He told the officer that he thought the woman was very sexy, and that afterward he thought they “could keep the peace and try it again.”



Defendant's first contention is that the trial court erred in allowing the prosecution to elicit on cross-examination that he had given a similar recitation of events when investigated in 1983 for a rape charge.   The governing principles come from People v. Ricketts, supra, 7 Cal.App.3d 441, 86 Cal.Rptr. 647.

In Ricketts, the defendant was arrested while driving a stolen automobile;  he was charged and tried for automobile theft.   At trial, the defendant testified that he had borrowed the automobile from a friend named Skip Frizzell at MacArthur Park for the purpose of moving his belongings to a new apartment.   Although defendant had noticed that the car could be started without a key, Frizzell had assured him that the car was not stolen.   When he attempted to return the car, Frizzell could not be located.

Over defense objection, the prosecutor was permitted to cross-examine the defendant about a similar story the defendant had told a police officer six months earlier when accused of stealing a different automobile.   The jury was admonished, however, that the evidence could not be considered as “ ‘evidencing any criminal disposition;’ ”  instead, if believed, the evidence could be considered only to the extent it “ ‘tends logically and naturally and by reasonable inference to establish any fact material to the prosecution or to overcome any material matters sought to be proved by the defense.’ ”   (People v. Ricketts, supra, at p. 445, 86 Cal.Rptr. 647.)   In its final instructions the court added, “ ‘The value, if any, of such evidence depends on whether or not it tends to show an absence of an ignorance or mistake of fact, such as would otherwise disprove criminal intent.’ ”  (Ibid.)

In affirming the admission of that evidence the Court of Appeal reasoned:  “The evidence here in question was highly relevant as tending to establish that the defense testimony about the friend in MacArthur Park loaning defendant the car, was fabricated.   From such evidence it could reasonably be inferred that defendant had a ‘pat’ or ‘ready’ alibi for use when stopped in a stolen car.   The trial court properly exercised its discretion in admitting the evidence.”   (People v. Ricketts, supra, 7 Cal.App.3d at pp. 445–446, 86 Cal.Rptr. 647;  see also People v. Moody (1976) 59 Cal.App.3d 357, 361, 131 Cal.Rptr. 923 [“It is settled that when a defendant uses the same excuse to explain his conduct on more than one occasion his prior statements are admissible to prove his present explanation is fabricated”].)

We agree with the trial court that Ricketts fits the instant case and supports admission of defendant's prior statements to Sergeant Aloe.   If the jury believed Sergeant Aloe's testimony, the similarity of that statement to defendant's testimony in the instant case was sufficient to support the inference that defendant's testimony was fabricated.

Defendant claims that Ricketts runs contrary to the proscription of People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1, that evidence of other crimes is inadmissible under a theory of common plan or scheme unless such evidence is relevant to contested issues such as identity or consent.  (Id. at pp. 88–89, text and fn. 7, 201 Cal.Rptr. 567, 679 P.2d 1.)   In the absence of such a contested issue, the court in Tassell reasoned, use of other crimes evidence to show common plan or scheme merely becomes a “euphemism” for dispositional character evidence, the evil proscribed by Evidence Code section 1101, subdivision (a).  (People v. Tassell, supra, at pp. 88–89, 201 Cal.Rptr. 567, 679 P.2d 1.)

Defendant is mistaking tangerines for oranges.   Here we are not concerned with admission of the details of the former crime to demonstrate a plan common to the manner of the commission of the former and the present crime.   In fact, we are not at all concerned with whether or not defendant committed the former crime, something keenly at issue under Evidence Code section 1101, subdivision (b).4  Instead, the Ricketts' theory of admissibility is that where the defendant gives common explanations for similar charges of misconduct, it is reasonable to infer that the explanations are contrived.   For this reason Evidence Code section 1101, subdivision (a) has no application.

In accordance with Ricketts, the trial court admonished the jury regarding the limited admissibility of the evidence both before the evidence was admitted 5 and during final instructions.6  However, the court refused to give defendant's proposed instruction that the “value” of the evidence depends upon “whether or not it tends to show an absence of ignorance of mistake, or mistake of fact such as would otherwise disprove criminal intent.”

On appeal defendant reads Ricketts as compelling the delivery of the additional instruction.   It does not.   The jury was fully and adequately instructed on the limited admissibility of the evidence.  (See fns. 5 and 6, ante.)   Further instruction was neither necessary nor required.


The judgment is affirmed.


2.   Unless otherwise indicated, all further statutory references are to the Penal Code.

3.   Defendant was also charged with forcible oral copulation (count II;  § 288a) and assault by means of force likely to produce great bodily injury (count III;  § 245, subd. (a)(1)).   On count II, the jury found defendant not guilty of oral copulation, and its lesser included offenses of assault with intent to commit oral copulation and attempted forcible oral copulation.   On count III, defendant was found guilty of the lesser included offense of misdemeanor assault (§ 240).   That count was later dismissed by the trial court.

4.   For this reason, the prosecutor did not seek to introduce evidence of the prior charges.   There was no testimony by the victim of the crime or any witness from the trial.   The only evidence of consequence to the prosecutor was the nature of defendant's explanation of what had taken place.

5.   Prior to admission of the evidence, the jury was instructed:“There is a very basic premise of law that you must understand and I admonish you to observe it, that is, evidence of prior acts or conduct may not be used for the purpose of concluding that a person charged with criminal activity has a proclivity to commit wrong, has a criminal disposition, or cannot be used as direct evidence of the proof of [the] charge pending against that person.   Such evidence may be used for legitimate or limited purposes.   You recall when I was giving you the initial indoctrination I said some evidence may come in for a limited purpose and limited purpose only.“In this case, we're now going to get into the subject matter which will relate to you that prior criminal charge was charged against this defendant.   And I am allowing this not for the purpose—and I admonish you not to consider this as evidence of criminal disposition or a willingness to do evil nor direct evidence as to the truth of the charges here.“If you believe this evidence, you may do so and use it only insofar as it tends logically and naturally, and by reasonable inference, to establish any material fact which is being offered to you by the prosecution, or to overcome any material fact sought to be proved by the defense.”

6.   The final instruction was:  “You have heard evidence that on a prior occasion, in 1983, Mr. Newman gave a statement to Sergeant Aloe of the Oakland Police Department.   You will recall that you have been instructed that that statement is not to be considered by you as evidence that Mr. Newman has a criminal disposition, or is possessed of a willingness to do evil, nor should you consider that statement as evidence that he committed any of the acts charged in this trial, or any lesser included offense upon which you will be instructed.“You may only consider this evidence insofar as you choose to do so to the limited extent that it may tend logically and naturally and by reasonable inference to establish any fact material to the prosecution, or to overcome any material matters sought to be proved by the defense.”

FOOTNOTE.   See footnote 1, ante.

POCHÉ, Associate Justice.

ANDERSON, P.J., and CHANNELL, J., concur.

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