Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC652691
Bamattre-Manoukian, ACTING P.J.
Defendant Richard Armand Archibeque was convicted after a 2009 jury trial of the first degree murder of Mary Quigley in 1977. (Pen. Code, § 187.) The jury found not true a special circumstance allegation that the murder was committed during the commission or attempted commission of a rape. (§ 190.2, subd. (c)(3)(iii).) The trial court sentenced defendant to prison for seven years to life, granted him presentence custody credits of 822 days, and ordered him to pay a criminal conviction assessment of $30 pursuant to Government Code section 70373.
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that (1) there is insufficient evidence to support his conviction, (2) the court prejudicially erred in admitting evidence of his conviction for a rape that occurred in 1979, (3) he is entitled to presentence conduct credits, and (4) the Government Code section 70373 assessment must be stricken. As we disagree with defendant’s contentions, we will affirm the judgment.
BACKGROUND
Defendant was charged by information filed February 29, 2008, with the September 1977 murder of Mary Quigley. (§ 187.) The information further alleged that the murder was committed during the commission or attempted commission of a rape. (§ 190.2, subd. (c)(3)(iii).) Defendant moved in limine to exclude under Evidence Code section 1108 and 352 evidence of his conviction for a rape that occurred in July 1979. The People opposed the motion. The trial court ruled that it would allow the victim of the July 1979 rape to testify.
The Trial Evidence
Mary Quigley’s Death
In 1977, defendant and Mary Quigley were students at Santa Clara High School. The school was adjacent to a large athletic field and ball park. Defendant was not someone that Quigley and her friends “hung out with.” Quigley and her friends often spent their evenings and weekends in a party room inside a barn behind the home of Ed Zeman, a student who lived across the street from the high school. Quigley lived a couple of miles from the school and, when she could not get a ride home on a weekend night, she would stay overnight in the barn.
On the night of September 9, 1977, Quigley and her friends went to a party at a house across the street from the athletic field near the high school. Quigley was seen around 9:00 p.m. outside in the driveway talking with four males, three wearing Derby jackets and one wearing a Pendleton shirt. She left the party before midnight; she could have left as early at 10:00 or 10:30 p.m. Zeman had expected Quigley to go to his house that evening, but he had to work and Quigley left the party before he got there. Defendant was not seen at the party and he was not one of the four males seen outside talking with Quigley.
Richard Sardinha and Manuel Oliveira arrived at the party between 9:00 and 9:30 p.m., and they, along with two of their friends, talked with Quigley. Oliveira was wearing a Pendleton shirt. At some point, Oliveira and Sardinha left, but they returned to the party. Oliveira was seen leaving the party about 10 or 15 minutes after Quigley left, and then returning about 30 to 45 minutes later. Oliveira was still at the party around 12:30 a.m. When Sardinha left the party for good around midnight, he went to his girlfriend’s house. Oliveira and others showed up at that house some time later, possibly as late as 2:30 a.m.
Oliveira died two to three years before the February 2009 trial.
Sometime between 10:00 p.m. and midnight on September 9, 1977, a woman who lived down the street from the high school was sleeping in her upstairs bedroom when she was awakened by her barking dog. She heard yelling outside so she looked out her bedroom window. She saw a car parked across the street and a girl yelling at four men of “different statures, different builds.” Three of the men were wearing Derby jackets and the fourth was wearing “a white t-shirt, possibly a [P]endleton.” The men were trying to talk the girl into getting into the car, but she was resisting their attempts. One of the men grabbed the girl on the wrist and pulled her to the car, but she yelled “ ‘Let me go.’ ” One of the men said, “ ‘Come on. You’ll enjoy it, ’ ” and the girl responded, “ ‘No, I won’t.’ ” The girl swore at the men and the argument continued for some time, during which time some girls in a car pulled up and asked the girl in the street if she wanted to come with them. The girl in the street said that she was okay, and the girls in the car left. After the woman watching all of this returned to bed, she heard one man say, “ ‘Let’s get the hell out of here, ’ ” and she heard the men’s car leave. When she went back to look out her window, the girl in the street and the men were gone. The woman described the men she had seen to the police on September 14, 1977, but she said that she would not be able to identify them if she saw them again. She testified that she never saw the girl’s face but she told the police that she was “99 percent certain” that the girl was Quigley.
Quigley’s body was discovered around noon on September 10, 1977. It appeared to the person who discovered her body that she had been beaten. Her body was held in a sitting position with one sleeve of her jacket wrapped around her neck and the other sleeve tied to a cyclone fence by a ballpark adjacent to the high school. Her jeans were tied to her left wrist and her underpants were inside one leg of the jeans. A purse was lying on top of the jeans with its handle and contents in the grass. Her undamaged blouse and bra were 16 1/2 feet from the fence, with the bra looped around the inside-out arm of the blouse. Her socks and shoes were on her feet. She had grass or twigs in her hair, on her chest, and underneath the ligature and necklace around her neck. There was blood dripping down her chest; visible marks on her face, neck, shoulder, and around her breasts; and live ants on her face, neck, and back. Tire tracks were found in the grass leading up to the cyclone fence, but no drag marks were found.
Quigley’s autopsy was performed between 10:30 a.m. and 1:00 p.m. on September 11, 1977. It revealed no recent genital, vaginal, or anal injuries. Semen was found on and in her vagina and on her anus, so she had sex within 72 hours of her autopsy, but the autopsy did not reveal whether or not the sex was consensual. Quigley had a.02 blood alcohol level at the time of her death, but she tested negative for drugs. The cause of her death was strangulation by ligature. The markings on her neck and her internal injuries were consistent with her having been strangled from behind while she struggled and attempted to claw at the ligature, and then having been tied to the fence after she died. Manual strangulation by ligature is a violent act; “[t]here is a struggle, someone is compressing your neck and you’re clawing at your neck.” Quigley’s injuries were not consistent with her having died as a result of hanging from the fence. The markings on her legs, abdomen, breasts and face were consistent with postmortem ant feeding, but the ant activity could have obscured abrasions.
The Subsequent Investigation
Carlos Berrelez, who did not go to the September 9, 1977 party, testified on defendant’s behalf that a few days after Quigley’s death, he had a telephone conversation with Oliveira. Oliveira was under the influence of something and was upset during the conversation. He said that he was at a party over the weekend and had done something wrong, that he had a gun pointed to his head, and that he was going to shoot himself. Berrelez testified that he handed the telephone to Richard Cortes, who said to Oliveira, “shut up. Don’t say nothing about nothing.” Cortes testified on defendant’s behalf that he had a telephone conversation with Oliveira over a year after Quigley’s death. Cortes had been at the September 9, 1977 party and had also worn a Pendleton shirt that night. Cortes testified that Oliveira was under the influence of something and talked about suicide during their telephone conversation, but it had nothing to do with Quigley’s death. Oliveira had hit his wife, she wanted a divorce, and he said that he could not live without her. Cortes could not recall whether Berrelez was present at the time of this telephone conversation.
On January 22, 1978, Santa Clara police officers spoke to defendant about a matter unrelated to Quigley’s death. Defendant said that he was a student at Santa Clara High School and that he was aware of Quigley’s murder. He said that a news article had stated that she had been strung up on a fence with her own clothes and strangled. He said that he had taken several summer classes with her but had never talked to her. The officers asked defendant if he had anything to do with Quigley’s murder and defendant denied that he had. He said that he did not know who killed her.
In 1987, Oliveira had a conversation with David Rivera when they were both in custody. The conversation was about Rivera’s 1983 rape conviction. In 1989, when Rivera was arrested for a drug offense, he told a San Jose police officer that he had information he thought was related to Quigley’s murder. Rivera testified that he could not remember Oliveira’s exact words but that, during his 1987 conversation with Oliveira, Oliveira “made a statement similar to, ” “you should have killed the bitch like I did.” Oliveira did not say that he was talking about Quigley’s homicide. Rivera was in custody at the time of the September 9, 1977 party and Quigley’s death.
A police officer spoke with defendant on June 18, 1997, about a matter unrelated to Quigley’s death. During their conversation, the officer asked defendant about Quigley’s death. The officer testified that defendant “became somewhat nervous in his chair. He would not make direct eye contact, he had trouble swallowing. It appeared that he became nervous and evasive in his answers and he did give me some evasive answers to some of my questions.” Defendant initially denied knowing anything about Quigley, but he eventually said he went to school with her, he knew who she was, and he knew what happened to her.
On December 27, 2006, police officers contacted defendant because “there was a hit on the Mary Quigley case regarding [defendant’s] DNA.” A new blood sample obtained from defendant on December 27, 2006, was analyzed by the county crime lab for the purpose of conducting DNA testing on samples taken during Quigley’s autopsy. That testing revealed that semen found in Quigley’s vaginal wash and vaginal swab came from defendant. However, the semen found on Quigley’s underwear did not come from defendant. Nor did it come from Oliveira, Sardinha, Cortes, or Zeman, or from any other known male associated with Quigley or the September 9, 1977 party. Because the semen found on Quigley’s underwear did not match the semen in her vagina, the semen in her vagina was deposited after her underwear was removed. Quigley and defendant were both possible donors of the DNA mixture detected on some dry grass samples taken at the time of the autopsy.
Keith Inman, a senior forensic scientist at Forensic Analytical Science in Hayward, testified on defendant’s behalf that he reviewed the county crime lab notes and reports from the various DNA analyses done there. Inman did not do any testing himself. In his opinion, the analysis of Quigley’s vaginal swab indicates that there is a mixture of DNA from Quigley, defendant, and two other unknown donors, and that defendant was the major sperm donor. The analysis of Quigley’s underwear indicates that there is a mixture of DNA from Quigley and two unknown donors different from the donors indicated on the vaginal swab.
The 1979 Rape Evidence
Around 9:00 p.m. on July 14, 1979, 16-year-old M.P. was walking alone in Santa Clara near the railroad tracks by Lafayette Street. Just after she crossed the tracks, defendant approached her on foot, grabbed her around her neck, held her in a headlock, and pulled her through a hole in the fence. He told her not to scream and, when she tried to scream, he stuck a washcloth in her mouth. He pushed her to the ground near the fence, keeping his hand on her throat. M.P. had never seen defendant before.
Defendant unbuttoned M.P.’s shirt and fondled her breasts. He slid her pants and her underwear down her legs and removed them from one leg. She was very afraid. He took the washcloth out of her mouth, tried to kiss her, and bit her lip. He put his mouth on her breasts and his penis inside her vagina. When he removed his penis he ejaculated on her stomach. He dressed himself and then her, and had her sit next to him on the ground. He asked her questions and looked through her purse. He found her driver’s license and became concerned when he discovered that she was only 16. He said he was sorry for what he did. He told her his name and said that he lived right around the corner and was already in trouble with the law. He read her name and address on her license out loud and said that he knew where she lived. He said that if she told anybody, he would find her and kill her.
M.P. was calm and tried to convince defendant that she was fine, that he did not hurt her, that there was no harm done, and that it was “no big deal, ” so that he would let her go. They both stood up. Defendant held on to M.P.’s arm and walked her back through the hole in the fence to the spot where he first grabbed her. There, he let her go and walked away. She ran home, but did not report the incident to the police until the next morning because she was afraid. The washcloth defendant had stuffed in M.P.’s mouth was found by police at the scene.
One of the Santa Clara police officers who spoke to defendant in January 1978 also spoke to him in July 1979 about the incident involving M.P. Defendant admitted having contact with M.P., but stated that the sexual intercourse was consensual. He denied that he used any force and denied having put a washcloth in her mouth. Defendant was convicted by a jury of rape as a result of the July 1979 incident.
Verdict and Sentencing
On March 2, 2009, the jury found defendant guilty of the murder of Quigley in the first degree. (§ 187.) The jury found not true the special circumstance allegation that the murder was committed during the commission or attempted commission of a felony rape. (§ 190.2, subd. (c)(3)(iii).) On March 27, 2009, the court sentenced defendant to prison for seven years to life, granted him 822 days custody credits, and ordered him to pay a criminal conviction assessment of $30 pursuant to Government Code section 70373.
DISCUSSION
Sufficiency of the Evidence
The court instructed the jury that defendant was prosecuted for murder under two theories, malice aforethought and felony murder, and that it could not find defendant guilty of first degree murder unless all jurors agreed that the People proved that defendant committed murder under at least one of these theories. All jurors did not need to agree on the same theory. (CALCRIM No. 548.) The court instructed that, in order to find first degree murder with malice aforethought, the jury had to find that the murder was willful, deliberate and premeditated. (CALJIC Nos. 8.11, 8.20.) In order to find first degree felony murder, the jury had to find that the murder occurred “as a result of the commission of or attempt to commit the crime of rape, and where there was in the mind of the [defendant] the specific intent to commit such crime” (CALJIC No. 8.21); that defendant actively committed the rape or aided and abetted another person in its commission (CALJIC No. 8.27); and that the rape and the act causing the death were part of one continuous transaction (CALCRIM No. 549). The jury found defendant guilty of first degree murder but found not true the allegation that the murder occurred during the commission or attempted commission of rape.
Defendant now contends that there is insufficient evidence to support his murder conviction under either a felony murder or malice aforethought theory. Specifically, he argues that “there is insufficient evidence that the murder was committed during the course of a rape, because there is insufficient evidence that [defendant’s] sexual contact with Quigley was nonconsensual. Moreover, there is insufficient evidence that if [defendant] killed Quigley the killing was premeditated, because none of the hallmarks of a premeditated murder exist from which the jury could find that Quigley’s death resulted from premeditated action. Thus, the Court should reverse [defendant’s] conviction for first degree murder.”
The Attorney General contends that substantial evidence supports the first degree murder verdict under both premeditation and felony murder theories. “The evidence of rape supporting a felony murder theory is that, [defendant], a person who attended the victim’s large public school, but whom she did not know, had sexual intercourse with her in the short time between when she was last seen alive and when she died violently of asphyxiation by ligature.” “There is, in addition, substantial evidence of willful, deliberate and premeditated murder to cover up the rape, whenever it occurred.”
“If a count is submitted to a jury on alternative theories, and the evidence is insufficient as to one theory, we assume that the jury rested its verdict on the theory adequately supported by the evidence....” (People v. Silva (2001) 25 Cal.4th 345, 370.) “To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We apply this standard in determining the sufficiency of the evidence to establish premeditation and deliberation as elements of first degree murder. [Citation.]” (Id. at p. 368.) “The test is whether substantial evidence supports the decision [of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey (1992) 2 Cal.4th 408, 432.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
“ ‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill.... “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance.... “The process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.’ ” ’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1224 (Cole); People v. Solomon (2010) 49 Cal.4th 792, 812 (Solomon).)
“Generally, there are three categories of evidence sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, ‘we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.’ [Citation.] But these categories of evidence, borrowed from People v. Anderson (1968) 70 Cal.2d 15, 26-27, ‘are descriptive not normative.’ [Citation.] They are simply an ‘aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.’ [Citation.]” (Cole, supra, 33 Cal.4th at p. 1224; People v. Elliot (2005) 37 Cal.4th 453, 470; Solomon, supra, 49 Cal.4th at p. 812.)
Regarding felony murder, “[o]ur case law has consistently rejected a ‘ “strict construction of the temporal relationship’ between felony and killing as to both first degree murder and [the] felony-murder special circumstance.’ [Citation.] Instead, we have said that ‘a killing is committed in the perpetration of an enumerated felony if the killing and the felony “are parts of one continuous transaction.” ’ [Citation.] Indeed, we have invoked the continuous-transaction doctrine not only to aggravate a killer’s culpability, but also to make complicit a nonkiller, where the felony and the homicide are parts of one continuous transaction. (E.g., People v. Whitehorn (1963) 60 Cal.2d 256, 260, 264 [defendant, who had raped the victim, was guilty of felony murder when accomplice strangled the victim after the rape]; [citations].)” (People v. Cavitt (2004) 33 Cal.4th 187, 207.) The continuous-transaction doctrine “ ‘obviat[es] the necessity for, rather than requir[es], any technical inquiry concerning whether there has been a completion, abandonment, or desistence of the [felony] before the homicide was completed.’ [Citation.]” (Ibid.) “ ‘The homicide is committed in the perpetration of the felony if the killing and felony are parts of one continuous transaction’ [citation], with the proviso ‘that felony-murder liability attaches only to those engaged in the felonious scheme before or during the killing.’ [Citation.]” (Ibid.)
Based on the record in this case, and assuming that the jury rejected the theory that Quigley’s homicide was committed in the commission or attempted commission of rape, and thus that it rejected a claim that the killing and any rape were part of one continuous transaction, we nevertheless find that the evidence is more than adequate to support the jury’s verdict of first degree murder on the theory of premeditation and deliberation. Our Supreme Court’s discussion in People v. Lewis (2009) 46 Cal.4th 1255 is illustrative. In that case, the court stated: “In Anderson, supra, 70 Cal.2d at page 27, this court ‘identified three categories of evidence pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing.’ [Citation.] From the evidence presented, the jury could have concluded that defendant decided early in the evening to obtain sex from someone in the neighborhood, by coercion if necessary, and that he chose [Quigley] as his target. Also, ... the jury could have concluded that his motive in killing [Quigley] was to avoid detection. The manner in which she was killed supported a finding of deliberation and premeditation, because [Quigley] had been strangled....” (Lewis, supra, 46 Cal.4th at pp. 1292-1293), and she was dead before she was left hanging by her neck from a cyclone fence. “Moreover, even if the initial strangulation was spontaneous, the additional act, ” in this case of hanging her from a cyclone fence by her neck using her own clothes “ ‘is indicative of a reasoned decision to kill.’ [Citation.] Thus, a rational trier of fact could have been persuaded beyond a reasonable doubt that the killing was willful, deliberate, and premeditated.” (Id. at p. 1293; see also Soloman, supra, 49 Cal.4th at pp. 814-815 [jury could reasonably infer that defendant planned victim’s death from the evidence presented that victim was violently killed shortly after defendant had sexual contact with her].)
Contrary to defendant’s contention, the evidence presented did not require a finding that defendant’s and Quigley’s sexual encounter was consensual. Rather, her autopsy was inconclusive as to whether the encounter was consensual or nonconsensual. Because defendant was acquainted with the victim but was not someone she “hung out with, ” he was not at the party she attended the night she was killed, she was expected at a friend’s house that night, there was evidence that her sexual encounter with defendant occurred at or near the athletic field shortly before she was killed, and there was evidence that she had recently but earlier had sexual encounters with other males, a reasonable trier of fact could conclude that the victim’s sexual encounter with defendant was not consensual. In summary, a reasonable juror could have found beyond a reasonable doubt that Quigley was raped by one or more males, that defendant was the last one who raped her, that defendant killed her by using a ligature to strangle her, and that the homicide was willful, deliberate, and premeditated. (See People v. Perez (1992) 2 Cal.4th 1117, 1127; Lewis, supra, 46 Cal.4th at p. 1293 [all that is required is that “any rational trier of fact could have been persuaded beyond a reasonable doubt that the defendant premeditated the murder”].) Therefore, the evidence presented at trial was sufficient to support defendant’s conviction of first degree murder.
The 1979 Rape Evidence
Defendant moved in limine to exclude pursuant to Evidence Code sections 1108 and 352 the evidence of his conviction for the 1979 rape of M.P. He contended that introduction of the evidence would result in a fundamentally unfair trial because of the lack of clear evidence that Quigley was raped. “To admit the prior rape conviction as probative of the Quigley homicide, the court must assume that Ms. Quigley was raped” yet “[n]o expert could look at the evidence and opine that the intercourse was without consent or committed by force, violence, duress or menace.” He further contended that there were “significant differences between the rape conviction and the Quigley homicide.” The People argued that there was clear evidence that defendant sexually assaulted Quigley sufficient to provide a basis for the court to admit the 1979 rape evidence pursuant to Evidence Code section 1108. The court ruled that it would “allow the testimony of M[.]P[.] under 1108.”
Defendant now contends that the court committed prejudicial error when it admitted the evidence that he raped M.P. approximately two years after Quigley’s death. He argues: “First, the evidence was inadmissible because aside from the propensity evidence itself, there was no evidence that [defendant’s] sexual contact with Quigley was nonconsensual. Second, the evidence was prejudicial because its probative value was greatly outweighed by its prejudice to [defendant].” He also argues that admission of the evidence violated his federal constitutional right to due process.
Defendant separately contends that the court violated the ex post facto clauses of the federal and state constitutions by admitting evidence of the 1979 rape. “First, it allowed the jury to convict [him] based on evidence that was not admissible when he allegedly committed the charged offense. Second, ... rules like section 1108 which always run in favor of the prosecution to make conviction easier, subvert the presumption of innocence, and violate the Ex Post Facto clause.”
Evidence Code section 1108 creates an exception to the general prohibition against admitting evidence of character to prove conduct. (See Evid. Code, § 1101, subd. (a).) In pertinent part, subdivision (a) of section 1108 provides, “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.” Thus, “[i]n a case in which a defendant is accused of a sexual offense, Evidence Code section 1108 authorizes the admission of evidence of a prior sexual offense to establish the defendant’s propensity to commit a sexual offense, subject to exclusion under Evidence Code section 352. [Citations.]” (Lewis, supra, 46 Cal.4th at p. 1286.)
The California Supreme Court addressed the constitutionality of Evidence Code section 1108 in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta). The court concluded that Evidence Code section 1108 did not offend due process for two reasons. First, the admission of propensity evidence under the section is limited to cases involving the defendant’s sex offenses when he is charged with committing another sex offense. (Falsetta, supra, 21 Cal.4th at p. 916.) Second, the section authorizes the trial court to exclude evidence, pursuant to Evidence Code section 352, where its probative value is outweighed by the probability that admission of the evidence will necessitate undue consumption of time, create undue prejudice or confusion, or mislead the jury. (Falsetta, supra, 21 Cal.4th at p. 916.) Accordingly, the Falsetta court instructed: “By reason of section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Under Evidence Code section 1108, the trial court “retain[s] broad discretion to exclude disposition evidence if its prejudicial effect, including the impact that learning about defendant’s other sex offenses makes on the jury, outweighs its probative value. [Citations.]” (Falsetta, supra, 21 Cal.4th at p. 919; see Evid. Code, § 352.) Therefore, an appellate court applies the abuse of discretion standard of review for an order admitting disposition evidence under Evidence Code section 1108. (People v. Wesson (2006) 138 Cal.App.4th 959, 969; People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315.) “ ‘Under the abuse of discretion standard, “a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” [Citation.]’ [Citations.]” (Lewis, supra, 46 Cal.4th at p. 1286.)
We find nothing arbitrary, capricious, or patently absurd in the trial court’s ruling that evidence of defendant’s 1979 rape offense was admissible to prove his propensity to commit the charged offense. First, the probative value of the evidence was strong. Quigley had been strangled in 1977 shortly after having sexual intercourse with defendant under circumstances suggesting that the sexual intercourse was not consensual. Defendant’s 1979 rape of M.P. occurred approximately two years after the Quigley homicide, and the victim of that rape was around the same age as Quigley had been when Quigley died. In both incidents, it appears that the victims were walking alone at night when defendant encountered them. Defendant admitted the sexual contact with M.P., but claimed that it was consensual, yet he had been convicted of rape by a jury as a result of the incident.
Second, the undue prejudice was minimal. Because defendant was convicted of the prior rape, the jury would not be tempted to convict him simply to punish him for that offense, and the jury’s attention would not be diverted by having to make a separate determination whether defendant committed that offense. (See Falsetta, supra, 21 Cal.4th at p. 917; Lewis, supra, 46 Cal.4th at p. 1287.) Although the evidence of the prior offense could elicit a negative emotional response from the jurors in this case, it was less inflammatory than the charge that defendant raped and strangled Quigley to death and then left her tied to a cyclone fence. (See People v. Demetrulias (2006) 39 Cal.4th 1, 19; Lewis, supra, 46 Cal.4th at p. 1287.) In addition, while admitting evidence of the 1979 rape offense, the court excluded evidence the People proffered of two other sex offenses.
In 1977, before Quigley’s murder, defendant abducted and tied up with her own clothes in his car a girl he had been dating but who had broken up with him. He then scaled a fence in order to have her watch as he threatened to kill himself. The victim was able to wriggle free and run away. She did not report the incident until she was contacted as part of the investigation here. In 1978, defendant grabbed a woman he did not know as she walked alone at night and he pulled at her purse. The victim testified at a preliminary examination and defendant was held to answer for assault to commit rape (§ 220). The charge was reduced to, and he was later convicted of “grand theft person.” The victim passed away before this case came to trial but her preliminary hearing testimony was available.
In sum, we find no abuse of discretion in the trial court’s conclusion that the probative value of the evidence of the 1979 rape of M.P. outweighed its prejudicial effect in establishing defendant’s propensity to commit the charged sexual offense. (Evid. Code, § 1108.) “Finally, with respect to defendant’s claims of constitutional error, we note that ‘[t]he “routine application of evidentiary law does not implicate [a] defendant’s constitutional rights.” [Citation.]’ [Citation.]” (Lewis, supra, 46 Cal.4th at p. 1289.) Defendant recognizes that this court is bound by the decision in Falsetta that Evidence Code section 1108 does not violate a defendant’s federal constitutional right to due process. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In addition, Evidence Code section 1108 applies to cases tried after its effective date of January 1, 1996, and no ex post facto violation occurs when it is applied to a charged offense occurring before its enactment. (People v. Fitch (1997) 55 Cal.App.4th 172, 185; People v. Davis (2009) 46 Cal.4th 539, 603, fn. 6.)
Presentence Conduct Credits
The court awarded defendant 822 days presentence credits for the actual time he spent in custody prior to sentencing. Defendant seeks an additional 134 days of conduct credits.
Under the law in effect at the time of Quigley’s death, the penalty for first degree murder was seven years to life. (Former § 190, Stats. 1977, ch. 316, § 5 [penalty was “confinement in the state prison for life”]; former § 3046, Stats. 1967, ch. 138, § 7 [“No prisoner imprisoned under a life sentence may be paroled until he has served at least seven calendar years.”].) There was no statutory provision for awarding life prisoners presentence conduct credits. (People v. Garcia (1981) 115 Cal.App.3d 85, 112-113.)
At the time, section 4019 provided for presentence conduct credits of one day for each six days of actual presentence confinement. (Stats, 1976, ch. 286, § 4 [one day credit allowed for “each one-fifth of a month”].) Defendant acknowledges that presentence conduct credits under former section 4019 cannot be used to reduce either his minimum term of seven years or his maximum term of life. (See People v. Rowland (1982) 134 Cal.App.3d 1, 13; People v. Carpenter (1979) 99 Cal.App.3d 527, 535.) He contends, however, that, once he has served seven years, presentence conduct credits may be applied after he reaches his minimum eligible parole date. We disagree. As the court stated in People v. Sampsell (1950) 34 Cal.2d 757, at page 764, under the law in effect at the time of defendant’s offense, “a ‘life-termer’ is not entitled to credits for good behaviour.” Thus, this court has no authority to award defendant presentence conduct credits.
Government Code Section 70373Government Code section 70373, effective January 1, 2009, provides in pertinent part: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses.... The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony....” (Stats. 2008, ch. 311, § 6.5.) Defendant contends that the court erred in imposing a $30 criminal conviction assessment pursuant to Government Code section 70373 in this case because the statute was enacted after the date of his offense and it does not apply to crimes committed before its effective date. The Attorney General contends that it is “not a retroactive application of a non-punitive statute that is triggered by ‘convictions’ to impose it upon those convicted after the effective date of the statute, even if their criminal conduct underlying the conviction predates the statute’s effective date.”
We agree with the Attorney General. “The California Supreme Court reached a similar conclusion regarding an analogous statute. In People v. Alford (2007) 42 Cal.4th 749 (Alford), a statute effective after Alford’s crime imposed a court security fee on every conviction. (See Pen. Code, § 1465.8.) Because the statute was part of a budgeting bill, the court concluded that ‘the Legislature intended to impose the court security fee to all convictions after its operative date.’ (Alford, supra, 42 Cal.4th at p. 754.)” (People v. Castillo (2010) 182 Cal.App.4th 1410, 1414 (Castillo).)
“[L]ike the court security fee, the criminal conviction assessment for court facilities was enacted as part of the budgeting process. [Citation.]” (Castillo, supra, 182 Cal.App.4th at p. 1414.) “The similarity between these two provisions is stark. The conclusion that the Legislature decided to convey the same meaning in both statutes seems inescapable. Alford was decided before [Government Code] section 70373 was enacted. Generally, ‘when a term has been given a particular meaning by a judicial decision, it should be presumed to have the same meaning in later-enacted statutes or constitutional provisions.’ [Citations.] [¶] The Legislature’s decision to word [Government Code] section 70373 like the court security fee statute, after the latter statute had been interpreted by Alford, to apply to convictions occurring after that statute’s effective date shows that the Legislature intended the new assessment to apply to convictions occurring after the new statute’s effective date.” (Ibid.; see also People v. Knightbent (2010) 186 Cal.App.4th 1105, 1111-1112; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 6.)
The trial court properly imposed a $30 criminal conviction assessment in this case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.