PEOPLE v. PIERCE (1999)

OPINION

Appellant Randall Blaine Pierce was convicted by a jury on one count of oral copulation by force or fear (a violation of Pen.Code,1 § 288a, subd. (c), count one), one count of sodomy by force or fear (a violation of § 286, subd. (c), count two) and one count of false imprisonment (a violation of § 236, count three).   He was sentenced to a term of 12 years 8 months in state prison.   On April 25, 1995, this court reversed the conviction (People v. Pierce (Cal.App.) No. F020282, opn. deleted upon direction of Supreme Court by order dated July 27, 1995), finding appellant had been denied a fair trial because one of the jurors had been mentally incompetent.²

Appellant's second jury trial began December 2 and ended December 6, 1996, when the jury returned its verdict of guilty on all counts.   On January 7, 1997, appellant was sentenced to a total term of 16 years in state prison.   The court imposed the upper term of eight years on counts one and two as full consecutive terms, and a two-year midterm on count three, to run concurrently to the terms imposed on counts one and two.

In this timely appeal appellant challenges both the convictions and the sentence on numerous grounds.   We find merit only in his claim that the court erred in imposing a greater sentence than that imposed after the first trial.   We will remand for resentencing.

FACTS

Appellant and Carla T. dated briefly in 1990.   Their relationship included a consensual sexual relationship.   On the evening of January 4, 1992, Carla was leaving an Alcoholics Anonymous (AA) meeting with her friend Wayne Vail. Appellant approached the two in the parking lot.   Appellant told Carla he wanted her to come with him and talk to “some people” about her current boyfriend, who appellant claimed was in “trouble.”   Carla told appellant to get into the car and the three drove off.   She then dropped Vail off at another meeting and appellant took over the driving duties.   After driving around for awhile, Carla called her baby-sitter and asked her if her two small children could stay the night because she did not know how long she would be.   Once child care was arranged, appellant and Carla went to the home of Bob Loux. At the Loux home, appellant showed Carla some bullet holes in a door which he said were the result of Loux killing someone in the house recently.   Appellant also told Carla there were a bunch of teenagers outside who would enter the home if they heard a commotion.

At one point, Carla started to sit on the floor, but appellant told her in a firm voice to come sit on his lap.   He then tried to touch her breast and she told him to stop.   When she got up and walked away, he followed her.   Appellant told Carla he had some tapes of her boyfriend he wanted her to hear and he pushed and prodded her to the bedroom.   She went unwillingly.   When they arrived at the bedroom, appellant asked her if she were afraid.   When Carla said “yes,” appellant said she need not be, but then told her how he had physically abused another woman who had refused him and tried to run away.

Appellant then ordered Carla to take off her clothes.   He held her arms behind her back and placed her in front of a mirror.   He fondled her breasts.   When Carla said she didn't want to have sex with him, appellant said she did not have a choice.   Appellant then forced her to orally copulate him.   After this act, appellant applied lotion, turned Carla over and sodomized her.   She asked him to “please don't do this” and he responded “this is something I have to do.”   Carla screamed, but appellant covered her mouth with his hand.   After the assault, appellant laid on top of Carla.   Later she believed he was asleep and she tried to get up to leave, but he awoke and restrained her.   This happened several times during the night.

Carla was afraid throughout the night because of the violent comments appellant had made, because she did not know or trust Loux, because she knew appellant was a black belt in tai kwon do, and because appellant threatened to take her to a cabin and lock her in it.   She also considered his story about the other woman who had resisted him a threat.   She believed appellant was under the influence of “speed or something.”

Finally, at dawn, January 5, 1992, Carla told appellant she loved him and would start seeing him again in the hopes he would let her go.   Appellant did.   Carla drove to pick up her children and then returned home.   She took a shower, trying to get “clean,” and started crying.   She called her AA sponsor and told her what had happened.   The sponsor urged her to report the offense, but Carla said “no” because she feared she would be killed if she did.   She went to visit her mother who lived on the property in a separate house.   Her mother noticed Carla was agitated and very upset.   Carla told her she had been “kidnapped” by Pierce and held by him all night.   When her mother asked if she had been raped, Carla responded “yes.”   The next day, January 6, 1992, Carla did talk to a rape crisis counselor who also suggested Carla report the offense.   After talking with the counselor, Carla agreed to go to the hospital and called police.

At the hospital, a rape kit examination was done.   Both the emergency room physician, Dr. Max Miller, and the attending nurse, Ms. Jackie Tomlinson, testified at trial.   Dr. Miller testified when he examined Carla, she had a reddened, irritated external anus and that her physical exam was consistent with her history, i.e., that she had been forcibly sodomized.   He also testified Carla had a “depressed affect,” looked sad and had downcast eyes.   This was consistent in Dr. Miller's experience with the demeanor of other rape victims.   Nurse Tomlinson testified Carla had a flat affect, was very quiet and was “blank,” which in her experience was consistent with the demeanor of other victims of rape.   Both stated they did not know whether the sexual contact was consensual or not.

At the hospital, Sheriff's Deputy Douglas Unruh and Detective Jim Silva took statements from Carla concerning the offense.   Unruh said Carla appeared traumatized.   Silva said she was nervous, avoiding eye contact and was reluctant to discuss the attack.   Detective Silva collected the sheets from Loux's house.   A criminologist found seminal fluid on the sheets.   Silva also found two bottles of lotion in the bedroom, one of which had the lid off.

At trial, Cynthia S. testified concerning her former relationship with appellant, including a consensual sexual relationship.   During the relationship, appellant was physically abusive towards her.   On March 3, 1990, appellant showed up at a residence where Cynthia was present and grabbed her by the hair, slamming her into a wall before forcing her into a car.   At one point she ran from the car and hid behind a bush, but appellant found her.   He told her he would kill her if she did not get back into the car and he grabbed her by the neck and hair taking her back to the car.   He then drove to a motel room where he forced her with threats to orally copulate him and raped her.   Cynthia S. did file charges against appellant and the case was resolved when appellant pled guilty to assault likely to produce great bodily injury.

defense

Appellant testified in his own behalf.   He admitted having sexual contact with Carla but claimed it was consensual.   He claimed he never threatened her or forced her to do anything at the Loux home.   He also denied being under the influence of narcotics, although he testified he was a heavy drug user and alcohol drinker during this period.   His testimony differed significantly from Loux's testimony and from his own previous testimony on a number of points.   Loux testified he spent 45 minutes visiting with appellant and Carla before retiring and that Carla was “very friendly” with appellant.   He stated Carla sat on appellant's lap, although he admitted not being able to hear what was said between them because he was not wearing his hearing aids.   He also stated he would not have been able to hear any unusual noises or yelling that night.

Appellant also denied raping Cynthia S., although he admitted their relationship ended in a “very ugly domestic scene.”   He claimed their 1990 sexual encounter at the motel was consensual.

DISCUSSION

I.-II.**

III. The Evidence of the Prior Offense Was Properly Admitted.

At the close of trial, the court instructed the jury on the proper use of the evidence concerning the 1990 incident involving Cynthia S. It is undisputed appellant was not convicted of a sexual offense in connection with the incident.   In her testimony, Cynthia S. explained although rape charges were initially filed, the prosecutor offered a plea bargain to appellant which included an assault offense and not a sexual offense.   She testified she concurred with the plea bargain because she did not want the ordeal of testifying.   As a result, appellant pleaded guilty to assault with force likely to cause great bodily injury and the rape charge was dismissed with a Harvey ⁶ waiver.   The instruction given to the jury in connection with this evidence was a modified version of CALJIC No. 2.50, modified to conform with the recent enactment of Evidence Code section 1108.   The court instructed as follows:

“Evidence has been introduced for the purpose of showing that the defendant committed sexual crimes other than that for which he is on trial.  [¶] Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show that:  [¶] The defendant is a person who may have a disposition to commit crimes of a sexual nature;  or that [¶] The defendant did not reasonably and in good faith believe that the person with whom he engaged in or attempted to engage in a sexual act consented to such conduct;  [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case.  [¶] You are not permitted to consider such evidence for any other purpose.”

Evidence Code section 1108, effective on January 1, 1996, provides in relevant part as follows:

“(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 [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.”

Appellant raises several challenges to the admission of the evidence and to the instructions given the jury in connection with it.   We start with the basic challenges to the constitutionality of Evidence Code section 1108.

A. Evidence Code Section 1108 Is Not Unconstitutional

Appellant contends Evidence Code section 1108 violates the due process and equal protection clauses of the federal Constitution and that “it subvert[s] hundreds of years of settled law that a defendant must be convicted on the facts of the alleged crime rather than on his character.”

 Certainly appellant must be tried for the current offense, not the past offense or his propensity to commit certain offenses.  (See United States v. Myers (5th Cir.1977) 550 F.2d 1036, 1044;  People v. Garceau (1993) 6 Cal.4th 140, 186, 24 Cal.Rptr.2d 664, 862 P.2d 664.)   However, admission of the prior crimes evidence does not necessarily lead to the conclusion he was tried on his character.

 1) Due process

 Evidence of prior sex offenses is both relevant and highly probative.   If evidence is probative, it is extremely difficult to argue a constitutional ground requiring its exclusion.  (Watkins v. Meloy (7th Cir.1996) 95 F.3d 4, 7.) As noted by the court in People v. Fitch (1997) 55 Cal.App.4th 172, 63 Cal.Rptr.2d 753, federal courts have routinely rejected the argument that use of prior crimes evidence to show a defendant's propensity to commit a crime violates due process.  (Id. at p. 180, 63 Cal.Rptr.2d 753 and federal authorities cited therein.)   In Fitch, the Third Appellate District reviewed and considered the long history in California of restricting use of prior crimes evidence.   Nonetheless, it concluded it was time for a change, a fact which our state Legislature acknowledged in enacting Evidence Code section 1108.   In the face of the serious and secret nature of sex crimes and the inevitable credibility battle at trial between a defendant and the victim, the Legislature determined evidence of prior sex offenses committed by the defendant should be admitted to show propensity.  (People v. Fitch, supra, at p. 182, 63 Cal.Rptr.2d 753.)

 There are certainly dangers in allowing this type of evidence.   The prejudicial potential of prior crimes evidence has long been recognized.   However, as the court stated in Fitch, and again in People v. Harris (1998) 60 Cal.App.4th 727, 70 Cal.Rptr.2d 689, Evidence Code section 352 provides an adequate safeguard to guarantee a fair trial.   Evidence whose probative value is outweighed by the possible prejudice of the evidence, because it is unduly inflammatory, remote in time, or will consume an undue amount of time, will be excluded under Evidence Code section 352.   In addition, the jury will be instructed on the use of the prior crimes evidence as it was in this case.   The court will also instruct in order to return a verdict of guilty on the charged offense, the jury must find guilt beyond a reasonable doubt.   There is no reduction in the burden of proof on the charged offense and no risk of the jury resting its verdict solely on proof of the prior crime.  (People v. Fitch, supra, 55 Cal.App.4th at pp. 182-183, 63 Cal.Rptr.2d 753.)

We agree with Fitch:  Due process guaranties are not offended by the provisions of Evidence Code section 1108.

 2) Equal protection

Appellant contends the statute also violates the equal protection clause because it establishes a different standard for those who are charged with sex offenses as compared to those who are charged with nonsex offenses.   We again turn to People v. Fitch which addressed this argument as well.

 As the court noted, the class created by Evidence Code section 1108 is not based on a constitutional right or principle and, therefore, need only be justified by a rational state interest.   The Legislature has identified the interest justifying the use of prior crimes evidence:  the secret nature of sex offenses making the proof of these cases difficult and the concern created when the credibility of the victim is routinely pitted against the alleged perpetrator at trial.  (People v. Fitch, supra, 55 Cal.App.4th at p. 184, 63 Cal.Rptr.2d 753.)   There is no equal protection violation because a rational state interest supports the class created by the statute.

 3) Ex post facto and double jeopardy

 Appellant also argues the evidence admitted under Evidence Code section 1108 violates the constitutional prohibition against ex post facto laws and the principle of double jeopardy.   At appellant's first trial the prosecutor attempted to introduce the testimony of Cynthia S. regarding the prior offense.   The court refused to allow it.   Notwithstanding the lack of this evidence, appellant was convicted.   The conviction was reversed in April 1995.   Evidence Code section 1108 was enacted in 1995 (Stats.1995, ch. 439, § 2) and became effective on January 1, 1996 (Gov.Code, § 9600) and thus was applicable at the second trial which commenced after that date.  (Evid.Code, § 12.)   Both the California and federal Constitutions contain ex post facto clauses and they are interpreted similarly.  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 295, 279 Cal.Rptr. 592, 807 P.2d 434.)   Appellant raises his challenge under both, claiming he was “disadvantaged” by the evidence of his prior offense against Cynthia S. Pursuant to the ex post facto clause, “Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.”  (Collins v. Youngblood (1990) 497 U.S. 37, 42-43, 110 S.Ct. 2715, 111 L.Ed.2d 30.)   A new rule of evidence, which does not increase the burden of proof or deny the accused a defense, may validly operate in a trial of an earlier offense.  (Ibid.;  DeWoody v. Superior Court (1970) 8 Cal.App.3d 52, 56, 87 Cal.Rptr. 210.)  “․ Evidence Code section 1108 does not alter the definition of a crime, increase punishment, or eliminate a defense ․” (People v. Fitch, supra, 55 Cal.App.4th at p. 186, 63 Cal.Rptr.2d 753.)   Thus, the prior sex crimes evidence admitted at the second trial did not violate the ex post facto clause.

 Appellant's double jeopardy argument is also without merit.   The guaranties under the double jeopardy clause are three-fold:  a defendant may not be prosecuted after an acquittal on the same offense, may not be convicted for the same offense, and may not be punished for the same offense.  (Illinois v. Vitale (1980) 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228.)   None of these guaranties are applicable to this case.   Appellant has cited no case holding double jeopardy applies to trial evidentiary rulings.   He does cite People v. Krivda (1971) 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262, vacated in California v. Krivda (1972) 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45, a case which prohibits relitigation of issues arising under section 1538.5.   Appellant also cites Lockwood v. Superior Court (1984) 160 Cal.App.3d 667, 671, 206 Cal.Rptr. 785 which discusses the doctrine of collateral estoppel in criminal cases.   Neither Krivda nor Lockwood is helpful to appellant.

 Although relitigation of issues arising under section 1538.5 may generally not be raised again at trial, the concern is one of preserving limited judicial resources, not principles of double jeopardy. (§ 1538.5, subd. (m).)  Principles of collateral estoppel only apply when there has been a final determination of the issue in a prior action.  (People v. Uhlemann (1973) 9 Cal.3d 662, 667, 108 Cal.Rptr. 657, 511 P.2d 609.)   It is well established the granting of a motion to suppress does not constitute a final determination on the merits and has no binding effect in another trial involving the same evidence and the same defendant.  (See People v. Gephart (1979) 93 Cal.App.3d 989, 997, 156 Cal.Rptr. 489;  People v. Torres (1992) 6 Cal.App.4th 1324, 1329, 8 Cal.Rptr.2d 332;  People v. Meredith (1992) 11 Cal.App.4th 1548, 1557, 15 Cal.Rptr.2d 285;  People v. Gallegos (1997) 54 Cal.App.4th 252, 267, 62 Cal.Rptr.2d 666;  People v. Sahagun (1979) 89 Cal.App.3d 1, 16, 152 Cal.Rptr. 233.)   Likewise, by analogy, an evidentiary ruling does not constitute a final determination of the issue such that it would bind a later trial court hearing the matter after reversal.

 The law is clear-decisions concerning the admission of evidence in a trial is within the province of the trial judge.  (People v. Jones (1998) 17 Cal.4th 279, 304, 70 Cal.Rptr.2d 793, 949 P.2d 890;  People v. Hall (1986) 41 Cal.3d 826, 834, 226 Cal.Rptr. 112, 718 P.2d 99.)   Each trial judge faces unique evidentiary issues as they unfold with each witness and each exhibit.   In this case, a new evidentiary statute had been enacted and thus rules governing the admission of the evidence were different in the second trial.   Appellant's argument is without merit.

B.-IV.***

DISPOSITION

The judgment of conviction is affirmed.   The matter is remanded for resentencing.

FOOTNOTES

FN1. All further references are to the Penal Code unless otherwise noted..  FN1. All further references are to the Penal Code unless otherwise noted.

2.   Pursuant to appellant's request we take judicial notice of the record in the previous case (No. F020282) for the purpose of verifying the case's procedural history.

FOOTNOTE.   See footnote *, ante.

6.   People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396.

FOOTNOTE.   See footnote *, ante.

THAXTER, J.

DIBIASO, Acting P.J., and BUCKLEY, J., concur.