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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Olufemi Babatunde OGUNMOLA, Defendant and Appellant.

Cr. 41171.

Decided: August 01, 1984

Weitzman & Re and Howard L. Weitzman, Los Angeles, and Gina Putkoski, Arcadia, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Gary R. Hahn and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

On a previous appeal to this court defendant challenged his conviction by a jury of two counts of forcible rape, a violation of Penal Code section 261, subdivision (4), which proscribes intercourse with a person who is unconscious of the nature of the act.

In an unpublished opinion filed August 12, 1983, we rejected defendant's numerous claims of error and affirmed the conviction.

Subsequently, the Supreme Court granted a hearing and by an order filed June 21, 1984, retransferred the matter to this court “for reconsideration in the light of People v. Tassell (1984) 36 Cal.3d 77 [201 Cal.Rptr. 567, 679 P.2d 1].”

In view of the limited scope of that order, we have modified and adopted that portion of our previous opinion, disposing of all issues in the case save the one to be reconsidered.   That issue we dispose of here.   We again affirm the judgment and have certified this portion of the opinion for publication.   The remainder of the opinion, where indicated, is not to be published.

This case involves charges by two female victims that defendant, a medical doctor, under the guise of performing a manual pelvic examination on each of them in his office and without the presence of witnesses, inserted his penis into their vaginas and accomplished acts of intercourse.

The defense was essentially that the pelvic examinations were performed only in the presence of a nurse or assistant and that the victims mistook the insertion of two fingers for the insertion of a penis.

The prosecution, over objection, was permitted to present the testimony of two other women who had suffered the identical experience.   Prior to the testimony of the two additional prosecution witnesses, the parties stipulated in the jury's presence that defendant had previously been tried and acquitted of the rape of both women.   The admissibility of that evidence is the focus of our reconsideration.   The issue is simply one of relevancy.

“Except as otherwise provided by statute, all relevant evidence is admissible.”  (Evid.Code, § 351;  emphasis added.)   In short the rules of evidence are rules of exclusion rather than admissibility.

Evidence Code section 1101 provides:  “(a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person's character or a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his conduct) is inadmissible when offered to prove his 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, or absence of mistake or accident) other than his disposition to commit such acts.  (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”

 Hence evidence that a defendant committed offenses other than those charged against him is, where relevant, admissible, or more properly not excludable, as evidence.   Nor is there any need to pigeonhole the evidence into those parenthesized examples cited in the statute.

 The Legislature, however, has declared that evidence which simply establishes a disposition on the part of a defendant to commit crime is irrelevant.

In People v. Tassell, supra, an opinion filed subsequent to our original opinion in this case, the Supreme Court dealt with a defendant who was charged with forcible rape and forcible oral copulation on a single victim.

Defendant admitted the intercourse and oral copulation but denied the use of force.   The prosecution produced two other females who testified to having been forcibly raped by defendant and forced to orally copulate him on occasions prior to the charged crimes.

A divided Supreme Court found error, albeit non-prejudicial, in the admission of the evidence concerning the two uncharged crimes.   The reasoning of the court was that since neither defendant's identity nor his intent to have intercourse with the victim was in dispute, the evidence of the other crimes was irrelevant to any “contested issue” in the case.

Brushing aside rather forceful arguments by the dissenters that the mental element or “intent” involved in rape includes an intent not just to have intercourse but to accomplish it by force and over the objection of the victim, and that the use of force was a “contested issue,” the majority simply made a collective, subjective determination that defendant's prior use of force was irrelevant.

The reasoning, which to us appears somewhat startling, was that the use of brute force to accomplish an act of intercourse with an unwilling victim is merely the qualitative equivalent of “indifference to the matter of consent” (Id., at 88, fn. 7, 201 Cal.Rptr. 567, 679 P.2d 1) which in turn equates with an irrelevant “disposition to rape.” 1

 Against this background we assay the relevancy of the disputed evidence in the case at bench.   To be sure, here, as in Tassell, identity was not an issue.   On the other hand, defendant's intent and the nature of his conduct were clearly contested issues.

The two victims in the case each testified that the defendant placed them in the vulnerable position of being supine on an examining table with their feet in stirrups and their vision of defendant obscured by a cloth cover.   That in each instance defendant dismissed his nurse or attendant from the room.   Each victim claimed to be able to discern that it was defendant's penis rather than his fingers which were inserted into her vagina.

Defendant's response was that it was his habit, as is the practice of all reliable doctors, to have a female nurse or attendant present at any such examination and that he never inserted anything into the victims' vaginas other than the appropriate medical devices and his fingers.

It was certainly relevant to the issues of defendant's intent and conduct to establish that he had engaged in a pattern of conduct which was contrary to his professed habit and custom.   There is here no question but that the circumstances of the charged and uncharged offenses were strikingly similar and unique.

That pattern of conduct would permit the jury to conclude that in his contacts with two victims he conducted himself according to that pattern and in the manner which they described.   Further the testimony of the additional witnesses increased the probability that the victims were not mistaken in their belief that a penis rather than fingers were inserted into their vaginas.

Penal Code section 261, subdivision (4) provides:

“Rape is an act of sexual intercourse accomplished ․ under any of the following circumstances: ․ Where a person is at the time unconscious of the nature of the act, and this is known to the accused.”

The disputed evidence here established much more than a simple propensity on the part of the defendant.   It tended to establish that when defendant suggested to the victims the need for a pelvic examination his intent was to satisfy his own sexual desires knowing the victims would not be conscious of what was occurring.

Despite the similarity between the charged and uncharged offenses and the patent relevancy of the evidence, defendant argues that the evidence was far more prejudicial than probative and that he was, in effect, being retried for crimes of which he previously had been acquitted.   Each of these contentions are lacking in merit.

 It has long been settled that if evidence is otherwise admissible, the fact that the defendant has been acquitted of the previous charge does not require its exclusion, “although the force of the evidence may be thereby weakened.”  (People v. Fox (1954) 126 Cal.App.2d 560, 569, 272 P.2d 837;  People v. Roy (1962) 203 Cal.App.2d 613, 623, 21 Cal.Rptr. 620.)

 Regardless of its probative value, evidence relating to other crimes always creates a risk of serious prejudice.   If the prejudicial effect outweighs the probative value, the trial court should exclude the evidence.   This determination, however, is within the sound discretion of the trial court and its conclusion will not be disturbed on appeal absent a showing of abuse.   (People v. Beyea (1974) 38 Cal.App.3d 176, 195, 113 Cal.Rptr. 254;  People v. DeRango (1981) 115 Cal.App.3d 583, 589, 171 Cal.Rptr. 429;  People v. Scott (1980) 113 Cal.App.3d 190, 198, 169 Cal.Rptr. 669.)

 In the broad sense, all relevant evidence which points to defendant's guilt is prejudicial to his defense.   The concept of “undue prejudice” referred to in Evidence Code section 352 is intended to apply to that type of evidence which uniquely tends to evoke strong or emotional reactions from jurors or appeal to passion to a degree which greatly overshadows the probative value of the evidence.   No such prejudice appears here.

The judgment is affirmed and the foregoing is certified for publication.   The following is not for publication.



1.   We note that on page 84, 201 Cal.Rptr. 567, 679 P.2d 1 of the opinion in Tassell the court appears to approve language in People v. Covert (1967) 249 Cal.App.2d 81, 57 Cal.Rptr. 220, which refers to a “ticket of admissibility” and on page 87, 57 Cal.Rptr. 220 reference is made to a “legitimate avenue of admissibility.”   ¶ These phrases run contrary to the spirit of Evidence Code section 351 and to the many other references in the opinion which speak of “exclusion” of evidence.   ¶ Hopefully trial courts will not interpret these two phrases as suggesting that a litigant who proffers an item of evidence must henceforth present a “ticket of admissibility” or construct a “legitimate avenue of admissibility.”   ¶ We are certain that these expressions were inadvertent and that Justice Kaus, who authored the majority opinion intended to convey no such message.   ¶ Nor do we read Tassell as standing for the proposition that intent and identity are the only issues to which evidence of other offenses may be relevant.

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.

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