PEOPLE v. DODD

Reset A A Font size: Print

Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Emmett Earl DODD, Defendant and Appellant.

Cr. 5750.

Decided: August 03, 1982

W. Michael LaRoche, Roseville, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief, Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and Gary A. Binkerd, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Appellant contends he suffered prejudicial error at trial as a result of the admission into evidence of two prior uncharged offenses.  (Evid.Code, § 1101.)   While we find appellant raises difficult and important points, we affirm his convictions.

Appellant was charged in an eight-count information in the Superior Court for Kern County.   He was charged with three counts of burglary (Pen.Code, § 459), one count of forcible rape (Pen.Code, § 261, subds. (2) and (3)), one count of attempted forcible rape (Pen.Code, §§ 664 and 261, subd. (2)), one count of attempted robbery (Pen.Code, §§ 664 and 211), one count of assault with intent to commit rape (Pen.Code, § 220), and one count of failure to register as a sex offender (Pen.Code, § 290).   The information also alleged prior convictions falling within the enhancement provisions of Penal Code section 667.5, subdivision (b) and Penal Code section 667.6, subdivision (a).   Appellant pled not guilty as to all counts.

Prior to trial the People filed points and authorities in support of a motion to admit evidence of two 1977 incidents in which appellant committed sexually oriented assaults similar to those for which trial was pending.   On the morning set for trial, the court granted the motion after entertaining oral argument in chambers.

That same morning, appellant pled guilty to count eight of the information, failure to register as a sex offender (Pen.Code, § 290).   Appellant also admitted his prior convictions for assault with a deadly weapon (Pen.Code, § 245, subd. (a)), and forcible rape (Pen.Code, § 261, subd. (2)).

After a jury trial verdicts of guilty were returned as to all counts.

Appellant was sentenced to 19 years in state prison.   He received the upper base term of six years for the burglary committed in count four (Pen.Code, § 461), a consecutive eight-year term for the forcible rape committed in count two (Pen.Code, §§ 264 and 667.6, subd. (c)), and a five-year enhancement for a prior conviction for forcible rape (Pen.Code, § 667.6, subd. (a)).  Sentences for counts one, three, five, six, and seven were stayed pending completion of the aforementioned prison term.   A six-month sentence for count eight (a misdemeanor) was deemed to run concurrently with the state prison term.

FACTS

During the late night hours of December 19, 1980, and the early morning hours of December 20, 1980, Hortencia Richer was at her home on Garces Highway with her two children.   Her husband was not present.   She was watching television at approximately 2 a. m. when there was a loud knock at the door.   Mrs. Richer turned off the lights and peeked out the window but did not see anyone.

In the meantime, appellant entered the residence through an unlocked kitchen window.   Appellant grabbed Mrs. Richer around the neck and demanded money.   Mrs. Richer responded that she had none.   Appellant dragged her to the bedroom and hit her.   She then told him she had some money and they went to the bathroom.   There, she turned the light on and saw appellant's face.   He turned off the light, and took her back to the bedroom.   Appellant raped Mrs. Richer, and departed.

Mrs. Richer went to her neighbor's house, and called her sister-in-law, who thereafter arrived along with Mrs. Richer's father and mother-in-law.   The police were then called.   Mrs. Richer told the police she had been robbed, but was too ashamed to admit she had been raped.   However, she told her mother-in-law she had been raped.

The next day, Mrs. Richer went to the police and informed them that she had been raped.   Subsequently, she identified appellant in both a photo and corporeal lineup.

Jessie Richer, Hortencia's mother-in-law, corroborated Hortencia's testimony that Hortencia told her about the rape that evening.   She was told before the police arrived, but remained silent at Hortencia's request.

At approximately midnight on January 2, 1981, Maria Adame was at home with her four children.   Her husband was not present.   She was sleeping in the living room, and was awakened by a knock.   Appellant was at the door, and inquired if Mrs. Adame knew the person next door.   Mrs. Adame responded in the negative and appellant departed.   This identical pattern was repeated about a minute later.   Mrs. Adame turned the lights on, heard a window being broken, and appellant entered.   Mrs. Adame opened her door and screamed.   Appellant dragged her inside and closed the door.   Appellant asked her for money.   There was a knock at the door.   Appellant looked outside and departed.   Mrs. Adame heard gunfire.

Raymond Galvan testified that he lived below Mrs. Adame, and heard screaming.   He looked into her apartment and saw her struggling with appellant.   He returned to his apartment, got his rifle, and fired some shots from the bottom of the stairs.   Appellant stumbled down the stairs.   Believing that appellant had a weapon, Galvan shot him.   Appellant then fled.

Subsequently, Mrs. Adame identified appellant at both a photo and corporeal lineup.   Galvan identified appellant at a corporeal lineup.

On the morning following the Adame incident, appellant was interviewed by the police.   Appellant had fresh wounds on both his stomach and right hand.   When apprised of the fact he was a suspect in the Adame case, appellant stated he had been drinking and accidentally fell into Adame's window.   He acknowledged he had been shot at.   Appellant's bloodstained jacket was later seized at his brother's residence.

At trial, the People presented evidence of two 1977 incidents involving appellant.   Judi Oliver testified she had been living alone with her eight-year-old son.   At about 2 a. m., there was a knock at the door.   She summoned the police.   They came, found nothing, and departed.   Soon thereafter, appellant broke in and threatened her with a knife.   Mrs. Oliver was able to escape.

The People also presented the testimony of Officer Mike Lage.   He recounted appellant's 1977 confession to the rape of Irma Moscorro.   Appellant had broken into her house and threatened her with a knife.

Appellant presented evidence and oral argument only as to the Richer case.   Officer Gerald Gruver testified that he was on patrol the night of the Richer incident.   At approximately 2–2:15 a. m., he saw a woman whom he believed to be Mrs. Richer with a Mexican male behind the Bobolou Club.   The club is about one mile from Mrs. Richer's residence.   The woman passed within two feet of Officer Gruver.   When he responded to Mrs. Richer's home at about 3:40 a. m., she was wearing what the officer believed to be the same clothes as the woman he had seen earlier.

Officer Burdette testified that at about 2:10 a. m. he saw a Mexican male entering the apartment complex where Mrs. Richer lived.   The man's description matched that of the man Officer Gruver had seen with the woman he believed to be Mrs. Richer.

Officer Pultz testified that Jessie Richer informed him Mrs. Richer had not told her about the rape until after the police had left Mrs. Richer's home on the night of the alleged rape.   This was in contrast with Jessie Richer's testimony.   She testified that Mrs. Richer told her about the rape before the police arrived.

DISCUSSION

Prior to trial, the People made a motion in limine to admit evidence of appellant's two 1977 criminal offenses involving Judi Oliver and Irma Moscorro.   Appellant had been convicted of forcible rape arising out of the Moscorro incident, and assault with a deadly weapon based on the Oliver incident.   The People's motion was premised on three separate theories.   It was contended that the prior offenses were relevant to show:  (1) appellant's intent to commit the offenses for which he was on trial, (2) appellant's identity as the perpetrator of the offenses for which he was on trial, and (3) a common scheme as to both the charged offenses and the prior uncharged offenses.

The trial court entertained oral argument in chambers, and concluded the prior offenses were of such substantial similarity to the charged offenses that they should be admitted into evidence.   The court did not make a specific finding as to which of the People's theories had persuaded it the evidence was admissible.   However, midway through trial, during the in-chambers voir dire of Officer Lage who testified as to appellant's confession of raping Irma Moscorro, the court stated that its ruling had been premised on the common scheme theory.   The court did not, however, state that it had found the People's alternative theories to be inapplicable.   We will consider each theory raised by the People on the assumption that each was persuasive to the trial court.

This case presents the very difficult and technical issue of whether appellant's prior offenses were properly admitted under Evidence Code section 1101.1  Subdivision (a) of section 1101 makes inadmissible evidence which is offered solely to prove a criminal defendant's predisposition to commit the offense for which he is on trial.   However, subdivision (b) makes admissible evidence which is offered to prove relevant facts other than a defendant's predisposition to act in a certain way.   While section 1101 is relatively straightforward as written, the courts have struggled in applying its principles to criminal cases where the defendant is charged with sex offenses.

The dilemma facing the appellate courts in this area stems from the essentially inflammatory nature of evidence of past sex offenses.   The Supreme Court has “․ voiced numerous warnings that the danger of prejudice frequently outweighs the probative value derived from admission of prior sex crimes of the defendant․”  (People v. Thomas (1978) 20 Cal.3d 457, 466, 143 Cal.Rptr. 215, 573 P.2d 433.)   Evidence of prior sex crimes should be received with “extreme caution.”  (Ibid.)

The difficulty of appellate review is further complicated because the Supreme Court also tells us that the admission into evidence of uncharged offenses must be reviewed under an abuse of discretion standard.  (People v. Thomas, supra, 20 Cal.3d 457, 466–467, 143 Cal.Rptr. 215, 573 P.2d 433.)   Despite this putative standard of review, the Supreme Court has shown no reluctance to criticize the trial court's exercise of discretion,2 and within the last two years, has set forth a comprehensive and highly technical test, which the courts must apply in reviewing the admission of evidence under section 1101.  (See People v. Thompson, supra, 27 Cal.3d 303, 314–318, 165 Cal.Rptr. 289, 611 P.2d 883, discussed at length below.)

 In short, the intermediate appellate courts are placed in a difficult position.   The appellate court must closely examine the record assuring itself that no undue prejudice accrued to the defendant, yet must do so in the context of abuse of discretion analysis.

 We now turn to the analysis mandated by our Supreme Court.   As has been mentioned, People v. Thompson, supra, 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883, sets forth the test by which admissibility of prior uncharged offenses must be measured.   In order to be admissible, evidence of prior offenses:  (1) must be offered to prove a material fact, (2) must have a tendency to prove or disprove the material fact (i.e., the proffered evidence must be relevant), and (3) the proffered evidence must survive scrutiny under several exclusionary rules.  (27 Cal.3d at p. 315, 165 Cal.Rptr. 289, 611 P.2d 883.)   Each of the People's theories of admissibility (intent, identity, and common scheme) will be examined in light of the Thompson test.

 “In order to satisfy the requirement of materiality, the fact sought to be proved may be either an ultimate fact ․ or an intermediate fact ‘from which such ultimate fact [ ] may be presumed or inferred.’   [Citation.]”  (People v. Thompson, supra, 27 Cal.3d at p. 315, fn. omitted, 165 Cal.Rptr. 289, 611 P.2d 883.)   Further, the ultimate fact to be proved must have been placed in dispute by the defendant.  (Ibid.)  Both intent and identity are ultimate facts, whereas common scheme is an intermediate fact.   (27 Cal.3d at p. 315, fns. 13, 14, 165 Cal.Rptr. 289, 611 P.2d 883.)

 In this case, both the identity and common scheme rationale proffered by the People survive scrutiny under the materiality requirement.   However, the intent rationale does not.   In their motion in limine, the People contended that intent was at issue with respect to the Adame incident.3  There, appellant admitted in a police interview that he had accidentally fallen into Adame's window while intoxicated.   In the People's view, it was necessary for it to be shown appellant had a guilty intent in being present at Adame's residence, in order to discredit his story that he had accidentally fallen into the window.

 The People's theory does not establish that the fact of intent was in “dispute” as is required by Thompson.  “[P]rior sex offenses are not generally admissible to prove intent unless the defendant has actually placed that element in issue (as when he has admitted the act occurred, but has denied the requisite intent because of accident or mistake).”  (People v. Thomas, supra, 20 Cal.3d 457, 467, 143 Cal.Rptr. 215, 573 P.2d 433, citing People v. Kelley, supra, 66 Cal.2d 232, 243, 424 P.2d 947.)   Here, appellant admitted prior to trial that he had accidentally fallen into Adame's window.   However, at trial he did not raise this defense.   He did not take the stand, nor did his attorney argue this theory.

Thus, the fact of appellant's intent was not a “disputed” issue at trial.   It was solely the People who sought to create a dispute by first coming forward with evidence of appellant's admission of falling into the window, and then presenting evidence of his prior offenses.   This is not sufficient to show materiality.   Where, as here, the accused does not contest the ultimate fact of his intent, evidence of prior guilty intent is inadmissible.  (People v. Thompson, supra, 27 Cal.3d 303, 315, 165 Cal.Rptr. 289, 611 P.2d 883;  People v. Thomas, supra, 27 Cal.3d 457, 467, 143 Cal.Rptr. 215, 573 P.2d 433.)

As previously stated, however, both the identity and common scheme rationale satisfy the prong (1) materiality requirement of the Thompson test.   We now consider prong (2), the question of relevancy.

 Thompson tells us that “[t]he court ‘must look behind the lable describing the kind of similarity or relation between the [uncharged] offense and the charged offense;  it must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered, and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong.’ ”  (27 Cal.3d at p. 316, 165 Cal.Rptr. 289, 611 P.2d 883, quoting People v. Schader (1969) 71 Cal.2d 761, 775, fn. omitted, 457 P.2d 841.) 4  Further, the policy of section 1101 requires that:  “[t]he inference of a criminal disposition may not be used to establish any link in the chain of logic connecting the uncharged offense with a material fact.”  (27 Cal.3d at p. 317, 165 Cal.Rptr. 289, 611 P.2d 883.) 5

In this case, the court must determine whether the uncharged offenses were relevant to show identity and common scheme.   Each will be considered separately.

 In People v. Thornton (1974) 11 Cal.3d 738, 523 P.2d 267, certiorari denied 420 U.S. 924, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, the Supreme Court considered the admissibility of uncharged offenses on the issue of identity.   It was held that for such evidence to be admissible, the People must show that there were distinctive common marks shared by the uncharged and charged offenses.  (11 Cal.3d at p. 756, 523 P.2d 267.)   The admissibility of identity evidence must be measured by:  (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.  (Ibid.)  Justice Bernard Jefferson has said that the Thornton test requires a showing of “․ highly distinctive common marks between the uncharged crime and the charged crime ․”  (People v. Rodriguez (1977) 68 Cal.App.3d 874, 885, 137 Cal.Rptr. 594, emphasis in original.)

 Here, the People contend the charged and uncharged offenses share the following characteristics:  (1) the victims were all mothers home alone with young children, (2) in at least three of the four incidents entry into the victims' residence was preceded by a loud knocking on the door, (3) entry was gained through a window, (4) in three of the four incidents the victims were grabbed around the neck or throat, and (5) in three of the four incidents the victims were attacked between the hours of midnight and 2 a. m.6  The People also note the following shared marks between the rapes of Richer and Moscorro:  (1) in both incidents the rapist remained fully clothed and freed his penis by unzipping his trousers, and (2) both women were raped on beds occupied by an infant.

Although the number of common marks or similarities is clearly sufficient, we must inquire whether there is a sufficient showing as to the degree of distinctiveness of the common marks.   We believe there are at least four highly distinctive common marks:  (1) each of the four victims was home alone with young children;  (2) the rapist remained fully clothed during the rapes of Richer and Moscorro, (3) the rapist performed both sex acts while infants were on the bed;  and (4) in three of the four incidents entry was gained through a window after distracting the victims by knocking on the door.   The late night hour at which the offenses occurred and the fact that three of the four victims were grabbed around the throat or neck, while possibly not “highly distinctive”, are certainly common marks that rise above the level of minimally distinctive marks.

We conclude the degree of distinctiveness among the charged and uncharged offenses here is sufficient to satisfy the Thornton test.   In People v. Rodriguez, supra, 68 Cal.App.3d 874, 137 Cal.Rptr. 594, Justice Jefferson noted four distinctive marks of similarity between the charged and uncharged offenses.  (68 Cal.App.3d at p. 885, 137 Cal.Rptr. 594.)   Despite the fact two of these marks were found to be more distinctive than the others and despite the existence of minor dissimilarities (a factor not present here), it was held the Thornton test was satisfied.  (Id., at pp. 885–886, 137 Cal.Rptr. 594.)   The same result is appropriate here.

Thus, the evidence of uncharged offenses offered on the issue of identity has cleared prongs (1) and (2) of the Thompson test.   This evidence must, of course, still be considered in light of prong (3), extrinsic exclusionary policies.   First, however, we turn to a consideration of whether the evidence of uncharged offenses was relevant on the issue of “common scheme.”

 For reasons which are unstated, the Supreme Court has set forth a less stringent test for the admission of evidence of uncharged offenses where that evidence is offered to show a common scheme.7  People v. Thomas, supra, 20 Cal.3d 457, 143 Cal.Rptr. 215, 573 P.2d 433, holds that evidence of uncharged sex offenses is admissible to show a common scheme, “․ where the prior offenses (1) are not too remote in time, (2) are similar to the offense charged, and (3) are committed upon persons similar to the prosecuting witness.  [Citations.]”  (20 Cal.3d at p. 465, 143 Cal.Rptr. 215, 573 P.2d 433.)

 Under the Thomas test, the evidence of the uncharged offenses was clearly admissible in this case.   The prior offenses were less than four years old, and hence not too remote.  (See People v. Williams (1981) 115 Cal.App.3d 446, 452, 171 Cal.Rptr. 401, 5 years not too remote).

The prior offenses were also clearly similar to the charged offenses.   As was detailed above, there were at least six elements of similarity between the charged and uncharged offenses.  People v. Pendleton (1979) 25 Cal.3d 371, 158 Cal.Rptr. 343, 599 P.2d 649, indicates this is sufficient to satisfy the Thomas test.   In Pendleton, nine similarities were found, including unauthorized late night entries and physical assaults on the victims.   These similarities are also present in the instant case.   The Pendleton court found the similarities there to be more than sufficient to justify admission of the uncharged offenses.  (25 Cal.3d at p. 377, 158 Cal.Rptr. 343, 599 P.2d 649.)   Here, the six similarities are likewise more than sufficient to justify admission of the two uncharged offenses.

Finally, the victims in both the charged and uncharged offenses were similarly situated.  (People v. Thomas, supra, 20 Cal.3d 457, 465, 143 Cal.Rptr. 215, 573 P.2d 433.)   Each was a mother home alone with young children.   This evidence easily satisfies prong (3) of the Thomas test.

 Thus, it has been found that the evidence of appellant's prior uncharged offenses, at least as to the issues of identity and common scheme, was admissible under the Thompson standards for materiality and relevancy.   However, prong (3) of the Thompson test must now be examined.   This prong requires analysis of two separate extrinsic exclusionary policies.   Evidence of uncharged offenses may not be admitted where it is “cumulative.”  (People v. Thompson, supra, 27 Cal.3d 303, 318, 165 Cal.Rptr. 289, 611 P.2d 883.)   Such evidence may also be excluded under Evidence Code section 352 where the prejudicial effect of the evidence outweighs its probative value.  (Ibid.)

In analyzing the applicability, if any, of these exclusionary policies to the uncharged offenses here, we recognize that the People's proof was substantially different between the Richer and Adame incidents.   In the Adame case, the People had positive identification from both the victim and Galvan.   They introduced appellant's admission that he had fallen into Adame's window.   Further, Galvan testified he had shot appellant and the police observed appellant's fresh wounds the morning after the incident.   Appellant offered no evidence in defense of the charge.

In the Richer case a different situation was presented.   Mrs. Richer testified to being forcibly raped.   Mrs. Richer identified appellant in both a photo and corporeal lineup and at trial.   However, Officer Gruver, called by the defense, testified that at approximately the same time as Mrs. Richer was allegedly being raped he observed a woman whom he believed to be Mrs. Richer with a Mexican male behind the Bobolou Club, about one mile from the Richer residence.   When he responded to the Richer home about 3:40 a. m., Officer Gruver was fairly certain Mrs. Richer was the woman he had seen outside the Bobolou Club.   Mrs. Richer specifically denied she had left her home that evening or been anywhere near the Bobolou Club.

Defense counsel's argument as to the Richer incident focused on the issues of Mrs. Richer's credibility and identity of appellant as the rapist if, in fact, Mrs. Richer had been raped.8  Evidence offered by the defense at trial and defense counsel's cross-examination of prosecution witnesses also focused on these issues.   Thus, as to Mrs. Richer, appellant raised two defense issues, either of which could result in acquittal if believed by the jury.

Given this factual context, we now proceed to an analysis of the first exclusionary policy, a consideration of whether the evidence of the uncharged offenses was “cumulative,” and hence inadmissible.   In People v. Thompson, supra, 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883, it is stated that cumulative evidence is inadmissible “․ under a rule of necessity․”  (27 Cal.3d at p. 318, 165 Cal.Rptr. 289, 611 P.2d 883.)

In the instant case Mrs. Richer testified to an unusual modus operandi utilized by her assailant—the knock on the door late at night while she was alone with young children, then entry through a window in a different part of the house while she was looking to see who was at the front door, followed by the assault and forcible rape.   Where, as here, the central issues are credibility of the complaining witness and identity of appellant as her assailant, the evidence of the uncharged offenses was not “․ merely cumulative with respect to other evidence which the People may use to prove the same issue.”  (People v. Schader, supra, 71 Cal.2d 761, 775, fn. omitted, 457 P.2d 841.)   The evidence was not inadmissible as cumulative.

The trial court was also required to consider whether under Evidence Code section 352 the probative value of the evidence of uncharged offenses outweighed its prejudicial effect.  (People v. Thompson, supra, 27 Cal.3d 303, 318, 165 Cal.Rptr. 289, 611 P.2d 883.)  “Since ‘substantial prejudicial effect [is] inherent in [such] evidence,’ uncharged offenses are admissible only if they have substantial probative value.   If there is any doubt, the evidence should be excluded.  [Citation.]”  (Ibid., fn. omitted, emphasis in original.)

Here the evidence had probative value, since the uncharged offenses were committed in a very similar manner to the charged offenses.   Further, the probative value of the evidence was substantial when examined in light of the key issues facing the jury in the Richer case.   The jury was required to resolve the credibility dispute between Mrs. Richer and Officer Gruver.   The evidence of appellant's modus operandi tended to corroborate Mrs. Richer's testimony that she was raped by appellant, and inferentially reflected on Officer Gruver's credibility.   Officer Gruver thought he saw Mrs. Richer on the street with another man at approximately the same time as the alleged rape.   Mrs. Richer testified to the contrary, insisting she was at home with her children.

 The jury was not entitled to disregard Officer Gruver's testimony merely because appellant had committed prior sex offenses.   However, in view of Mrs. Richer's contradiction of Officer Gruver's testimony and the strong similarity between the modus operandi she described and that previously employed by appellant, the People demonstrated that the evidence of appellant's prior uncharged offenses was of great probative value.   We conclude the probative value of the proffered evidence of prior uncharged offenses committed by appellant outweighed any prejudicial effect and was properly admitted by the court below.

In summary, we hold that the trial court adroitly avoided the pitfalls of the Thompson test.   No mean accomplishment.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   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.”

2.   See People v. Thompson (1980) 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883;  People v. Thomas, supra, 20 Cal.3d 457, 143 Cal.Rptr. 215, 573 P.2d 433;  People v. Haston (1968) 69 Cal.2d 233, 444 P.2d 91;  People v. Kelley (1967) 66 Cal.2d 232, 424 P.2d 947.

3.   No claim is made that intent was an issue in the Richer incident.

4.   We note in passing that the Thompson test for “relevancy” goes far beyond the definition of “relevant evidence” set forth in Evidence Code section 210.   That section provides that evidence is relevant if it has “any tendency” to prove or disprove a disputed fact.   The Thompson test which requires examination of “precise elements of similarity” between charged and uncharged offenses is obviously a more stringent test than that set forth in section 210.   The more stringent Thompson test may, of course, be justified by the specific exclusionary policy of section 1101, which makes inadmissible evidence of predisposition unless that evidence is relevant to prove a disputed fact (also see fn. 5).

5.   Relevancy is set forth as prong (2) of the Thompson test, while the policy concerns of section 1101 are delineated as one of the exclusionary policies to be considered under prong (3) of the test.   However, in applying its test, the Thompson court considers these issues together.  (27 Cal.3d at pp. 318–321, 165 Cal.Rptr. 289, 611 P.2d 883.)   It would therefore appear that the Court considers the policy concern of section 1101 to be that a strong showing of relevancy must be made.   Thus, as in Thompson, we consider the question of relevancy in the context of section 1101's requirement that criminal predisposition can play no part in the use of prior uncharged offenses.

6.   The People contend a further common mark is that appellant possessed a pocket knife during the commission of three of the four offenses.   However, in neither the Richer nor Adame incidents was the victim threatened with a knife, nor was a knife displayed.  (Appellant lost his knife while fleeing from Adame's residence as Raymond Galvan fired at him.)   Thus, it cannot be said that possession of a pocket knife was a shared characteristic of the perpetration of the charged and uncharged offenses, since the knife played no part in the charged offenses.

7.   Parenthetically, it should be noted that evidence of a “common scheme” is specifically made admissible by section 1101, subdivision (b), which provides for evidence of “plan.”   Evidence of a common scheme is generally admitted on the issues of identity or intent, although the Supreme Court has specifically held that there may be other justifications for admission of common scheme evidence.  (People v. Thomas, supra, 20 Cal.3d 457, 465, 143 Cal.Rptr. 215, 573 P.2d 433.)

8.   It should be noted that Officer Gruver's testimony was given somewhat more weight by the fact that Mrs. Richer did not tell the police she had been raped until the following day.   While this conduct is certainly explainable by a rape victim's understandable reticence to discuss the horrors of her experience, this evidence nonetheless added weight to appellant's defense.

MARTIN, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

ZENOVICH, Acting P. J., and PAULINE DAVIS HANSON, J., concur.

Copied to clipboard