Opinion
C024609 (Sacramento Super. Ct. No. 95F07720)
Filed August 12, 1998 REVIEW GRANTED
APPEAL from a judgment of the Superior Court of Sacramento County. James T. Ford, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael Weinberger and Jean M. Marinovich, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Anji Lynn Baker appeals following his conviction for two counts of forcible sodomy and one count of forcible oral copulation. He complains of the use of Evidence Code section 1108 to admit evidence of his prior sexual offenses. He also contends the trial court erred in (1) denying his Marsden motion to have counsel replaced due to irreconcilable conflict, (2) denying his Wheeler motion concerning the prosecution's use of peremptory challenges on black prospective jurors, and (3) disallowing evidence of the victim's prior sexual conduct.
Undesignated statutory references are to the Evidence Code.
People v. Marsden (1970) 2 Cal.3d 118.
People v. Wheeler (1978) 22 Cal.3d 258.
In the published portion of the opinion, we conclude the trial court properly admitted evidence of defendant's prior sexual offenses under section 1108. In reaching this conclusion, we reject defendant's contention that admission of evidence of one of the prior sexual offenses was improper because defendant had been previously tried and acquitted of the offense. In an unpublished portion of the opinion, we reject defendant's remaining contentions of error. We shall therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
By information filed in February 1996, defendant (age 33) was charged with (1) count one: kidnapping with the intent to commit forcible oral copulation and sodomy (Pen. Code, § 208, subd. (d)); (2) count two: forcible sodomy (Pen. Code, § 286, subd. (c)); (3) count three: forcible oral copulation (Pen. Code, § 288a, subd. (c)); (4) count four: forcible sodomy (Pen. Code, § 286, subd. (c)). It was alleged defendant personally used a deadly weapon, a knife, in the commission of each offense (Pen. Code, § 12022.3), and that each offense was a serious felony (Pen. Code, § 1192.7) and came within the meaning of the habitual sex offender statute (Pen. Code, § 667.71).
At the inception of the jury trial, the prosecutor filed a motion to allow evidence of prior sex offenses by defendant (for which defendant was not convicted) pursuant to sections 1108 and 1101, subdivision (b). Defendant sought exclusion of the evidence. The trial court ruled some of the evidence admissible, under section 1108, but not section 1101, subdivision (b).
Section 1108 provides in part: "(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 Section 1101, if the evidence is not inadmissible pursuant to Section 352 . . ."
Section 1101 provides: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her 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, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or his disposition to commit such an act.
"(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
The evidence adduced at trial, with respect to the charged offenses, showed as follows:
The victim, 20-year-old Theresa A., testified that on September 1, 1995, around 8 a.m., she went to a local homeless shelter for coffee and doughnuts. Defendant, who was a stranger, approached in his Volkswagen convertible and beckoned her. They talked for about 20 minutes and then she accompanied him to a store where he bought cigarettes and vodka. They drove to Miller Park and continued conversing. During their time there, they shared a "friendly hug."
At trial, the victim testified defendant tried to kiss her, but she pulled away. When reminded of her preliminary hearing testimony, she recalled defendant did kiss her briefly, but she did not kiss back. She initially felt flattered by defendant's attention but began to feel uncomfortable. Defendant pulled out a knife to adjust his car stereo speaker. A friend of defendant came by and chatted with him. The friend testified at trial that he assumed the victim was defendant's girlfriend, though he did not see them touch. After the friend left, defendant and the victim got in the car (the convertible top of which was down) to leave. Defendant pulled the knife on the victim, holding the blade near her rib. She saw a Sheriff's bus and clean-up crew nearby, but she was afraid and did not try to escape. When she asked defendant why he was doing this, he responded "It's the gangster in me."
Defendant drove to a grassy area off of Front Street and ordered her out of the car. He led her down a dirt path to a mattress on the ground. He told her to undress. She did so because of his "dirty looks" and the knife. Defendant told her to "suck his dick." The victim tried to dissuade him, but succumbed because she was afraid. Defendant held the knife in his hand during the oral copulation. Defendant also sodomized the victim, though she said "Please don't." He sodomized her twice during the assault, which lasted for hours. The victim testified she burned herself with the cigarette on her wrist, in response to defendant's order to do so.
Afterwards, defendant drove the victim home, stopping to buy cigarettes on the way. She was in pain and waited in the car. Defendant did not act like anything was wrong. When he dropped her off, he told her he would return at 4 p.m. She openly took a paper with his name on it, planning to have him arrested.
The victim called the police. She had abrasions on her buttocks, semen on her lip and anus, and a tear around the rectum. The physical findings were consistent with forcible sodomy.
The police testified that defendant, upon his arrest, said he had been working in Woodland. While handcuffed, he tried to reach into his back pocket. He told police he was reaching for his wallet, but the pocket contained only a knife. Defendant's employer testified he did not work that day.
Before the victim's testimony at trial, three other women testified to prior sexual assaults by defendant, which were not charged offenses in this case, as follows:
Ida J. testified she first met defendant in a laundromat in August 1983. They talked. The next morning, she went to his apartment, as he had offered to buy her breakfast. She accompanied him to a store for alcohol. Back at defendant's place, he drank the alcohol, pulled a gun on Ida, told her to undress, raped her, sodomized her, and forced her to orally copulate him. After a couple of hours, he let her leave, and she called the police. The investigating officer testified in the present trial that an air pistol was found in defendant's apartment, and that defendant claimed Ida had consented to the sex, asked for money, and became angry when defendant said he did not have any money and asked if she were a prostitute. Defendant told police he displayed the gun because she threatened to send over a "dude." Cross-examination of Ida in the present trial revealed that at the time of her encounter with defendant, Ida was 42 years old (about 20 years older than defendant), the mother of six grown children, and had recently left her husband. Pursuant to stipulation, the jury in the present case was told that defendant was criminally prosecuted on Ida's complaint and went to trial, and the jury returned deadlocked, with a ten-to-two v ote in favor of acquittal. The trial court granted the prosecution's motion to dismiss the case due to insufficient evidence.
Defendant repeatedly and very wrongly characterizes this as an acquittal. Of the three prior offenses, there was only one acquittal, not the two acquittals he claims on appeal.
Amber H. testified she lived in the same neighborhood as defendant in August 1987, when she agreed to go for a ride with him. Defendant hinted they might have sex, to which Amber indicated maybe, because she thought he might leave her stranded if she said no. Defendant purchased cocaine, and they went to his friend's home and watched television. Amber voluntarily kissed defendant. Later, defendant and Amber returned to her apartment, which had almost no furnishings because she was in the process of moving. They sat on a blanket and watched television. When she brought him a glass of water, defendant pulled off her tank top. She bolted for the door. He stopped her. She screamed. He pushed her against the wall, choked her, threw her to the floor, and hit her in the head with a broomstick. Defendant forced her to orally copulate him. She vomited. Defendant alternated between putting his penis in her vagina and her mouth. He continuously slapped her and wanted her to say "Hit me hard, Daddy." Defendant tried to sodomize her but stopped when she screamed. When defendant left, he took her television to insure she would not leave. Amber called the police.
The investigating officer testified in this trial that defendant claimed Amber had consented to the sex acts. On cross-examination, the defense elicited from Amber that at the time of the incident with defendant in 1987, Amber was sexually active and was pregnant by a man whom she did not consider to be a boyfriend. Amber also acknowledged she knew some karate moves, but she did not try them on defendant. The jury in the present case was told that criminal charges were brought concerning the Amber incident, but she was unable to travel to Sacramento for trial because her baby was due to be born, and the case was dismissed and was never refiled.
Nicole R. testified she was an acquaintance of defendant in November 1994, when he said he could help her with her job search. They met at night at her boyfriend's deserted office, where she was residing. They had pizza, and defendant consumed alcohol and marijuana. Defendant said he "wanted" her, but she said no. Defendant watched a video while Nicole, who was not feeling well, fell asleep at one end of the couch. She woke to find defendant pulling at her pants. She tried to scream. Defendant threatened to break her neck. He alternated between putting his penis in her mouth and her vagina. He tried to sodomize her, but she jerked away, and he did not continue. After about four hours, defendant folded her clothes, emptied the trash, and left. Nicole called the police. The jury in the present case was told that criminal charges were brought against defendant concerning Nicole's accusation, and he was acquitted by a jury.
In the present case, defendant testified in his own behalf. He admitted a prior felony conviction for possession of narcotics for sale. Regarding the present charged offenses, defendant denied the kidnapping and weapon use. He admitted the sex acts but said they were consensual. According to defendant, the victim was accidentally burned on the wrist when he tried to light her cigarette with his and an ash fell on her wrist. Defendant said that after sex, the victim expressed interest in a relationship and concern that defendant was "brushing her off." She complained her husband, who was in jail, was physically abusive. Defendant said he gave her a social security paper to reassure her he would see her again. After dropping off the victim, defendant drove to his workplace, where he was scolded for missing work. He then went to his wife's home (from whom he was estranged) to pay child support, and was on his way to his girlfriend's house when the police stopped him. He told the police that he was coming from work, not that he had been working. He testified he told the police about the knife in his pocket, and he tried to reach for the knife only to hand it over to the officer.
Regarding the three women who made accusations of prior offenses against him, defendant admitted the sex but claimed each woman was a willing participant. He claimed Ida only brought charges in retaliation for not getting paid for sex. He said Amber and he got along fine until the cocaine ran out and her demeanor changed, though he did not think she was angry at him. Defendant testified he did not remember but thought he may have taken Amber's television at her request, to sell it for money to buy cocaine. He did not remember telling a detective that he took it to make sure this was not a one-night stand. Defendant said Nicole told him she was not a "one night stand," but he thought they parted on good terms. Defendant introduced evidence that Amber and he both tested positive for cocaine on the date of that incident, and that Nicole tested positive for methamphetamine.
Karen C. testified defendant was formerly her boyfriend, and he never forced her to do anything she did not want to do. She voluntarily engaged in vaginal, anal and oral sex with him. At times, she told him to stop, and he stopped.
Defendant's friend, Donald White, testified he never knew defendant to force a woman to leave with him but did not know what defendant did behind closed doors.
The jury returned guilty verdicts on count two (forcible sodomy), count three (forcible oral copulation), and count four (forcible sodomy). The jury also found true the allegation that defendant had committed at least one act within the meaning of Penal Code section 667.61, subdivision (c). The jury did not reach a unanimous verdict on count one (kidnapping) or the weapon enhancements, and the court declared a mistrial.
Defendant was sentenced to 26 years in prison — consecutive upper terms of eight years for counts two, three and four, and a two-year midterm for a probation violation in a prior drug offense (which was the subject of a petition filed in September 1995).
DISCUSSION
I. Marsden Motion
Defendant contends the trial court erred in denying his motion to replace appointed counsel due to an irreconcilable conflict, pursuant to People v. Marsden (1970) 2 Cal.3d 118. We disagree.
A. Facts
Before trial, defendant moved to have counsel replaced. The issues presented to the trial court and argued on appeal are: (1) defendant asserted that counsel believed defendant was guilty and called his friends thugs; (2) defendant believed counsel did not follow through with (unspecified) exonerating information; and (3) defendant complained counsel did not vigorously cross-examine the victim at the preliminary hearing.
Defense counsel recounted her activities on defendant's behalf to the court. The court denied defendant's Marsden motion.
B. Analysis
"[S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]." ( People v. Smith (1993) 6 Cal.4th 684, 696.)
On appeal, defendant contends there was an irreconcilable conflict: "Because [defendant's] trial attorney believed [defendant] was guilty, [defendant's] right to counsel was substantially impaired."
This does not constitute grounds for substitution of counsel.
Thus, defendant cites People v. Munoz (1974) 41 Cal.App.3d 62, as supposedly commanding substitution of counsel. Munoz, however, said "if after appointment the attorney becomes convinced of his client's guilt to the extent that he is unable to defend the client vigorously and effectively at the trial, he should withdraw from the case." ( Id. at p. 66, italics added.) Although Munoz suggested the trial court must inquire into counsel's state of mind ( ibid.), the same court later clarified "inquiry into the attorney's state of mind is required only in those situations in which a satisfactory explanation for counsel's conduct or attitude toward his client is necessary in order to determine whether counsel can provide adequate representation." ( People v. Penrod (1980) 112 Cal.App.3d 738, 747.)
Assuming counsel did believe defendant was guilty, we see nothing suggesting her belief left her unable to defend her client vigorously and effectively at trial.
Defendant complains counsel (1) referred to defendant's fiancee and friend as "thugs"; (2) failed to investigate exonerating information; (3) failed adequately to cross-examine the victim (presumably at the preliminary hearing); and (4) after cross-examining the victim at trial, said to defendant sotto voce, "What do you want me to do? They, the jury, already hate you."
Assuming for the sake of argument that counsel made the comment attributed to her during trial, that would not provide a basis for overturning the trial court's decision on the Marsden motion, which was made before trial. Moreover, there is nothing to suggest the asserted comment was heard by anyone other than defendant, and the comment itself does not demonstrate any impairment of the right to counsel.
In his reply brief, defendant says the Attorney General cites no authority for his proposition that counsel for defendant must renew his Marsden motion at trial. However, it appears the point was that defendant asks us to find an abuse of discretion by the trial court based on events occurring after the trial court exercised its discretion. In any event, defendant cites no post-motion event which would justify replacement of counsel.
With respect to defendant's other points, he gives no specifics as to what exonerating information counsel ignored, and he gives no examples of how cross-examination was deficient. We are thus left only with the assertion that counsel referred to defendant's friends as thugs. In our view, this does not compel removal of counsel.
Moreover, with respect to all of defendant's points, on appeal defendant makes no cognizable claim of ineffective assistance of counsel. The Supreme Court has said that where a defendant has not argued on appeal that trial counsel was incompetent, "we can infer his Marsden motion lacked substance because ineffective assistance of counsel is the foundation which supports the Marsden rule." ( People v. Brown (1988) 46 Cal.3d 432, 461.)
In his reply brief, defendant says he has claimed ineffective assistance of counsel, by including in his Marsden argument specific complaints about his attorney's performance, i.e., failure to investigate exonerating information and failure adequately to cross-examine a witness. However, this does not constitute an ineffective assistance of counsel argument. Such an argument would have to be supported by a factual and legal analysis of the law concerning reversals due to ineffective assistance of counsel. (E.g., People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [appellate court may disregard contentions not adequately briefed, such as claims perfunctorily asserted without development and without clear indication that they are intended to be discrete contentions].)
Defendant also claims he raised an ineffective assistance of counsel argument by citing People v. Stankewitz (1982) 32 Cal.3d 80, for its statement that "`to compel one charged with [a] grievous crime to undergo a trial with the assistance of an attorney with whom he has become embroiled in irreconcilable conflict is to deprive him of the effective assistance of any counsel whatsoever.'" ( Id. at p. 94.) However, this statement (made in a discussion concerning the defendant's challenge to the trial court's denial of his request for a competency hearing) does not suggest that a Marsden claim is the same as an ineffective assistance of counsel claim.
We conclude defendant fails to show any significant impairment of his right to counsel.
II. Wheeler Motion
Defendant contends the trial court erred in denying his motion, based on People v. Wheeler (1978) 22 Cal.3d 258, challenging the prosecution's use of peremptory challenges to excuse two blacks from the jury, who were the only blacks in the panel. Defendant asserts he is black, the victim is white, and the entire jury was white. We see no basis for reversal.
A. Facts
In the trial court, the prosecutor used a peremptory challenge to excuse one black prospective juror. Defendant made a Wheeler motion, which was denied. When the prosecutor later used another peremptory challenge to excuse a second black prospective juror (leaving no blacks on the panel), defendant renewed his Wheeler motion. The prosecutor conceded the defense made a prima facie case for the Wheeler motion. (On appeal, the Attorney General does not share this concession.)
The prosecutor explained he removed the second black prospective juror because her brother was a defendant in a criminal prosecution for sexual assault. As to the other black prospective juror, Mr. Russell, the prosecutor said he excused him because (1) as one of the first people called into the box, Mr. Russell sat reading while other people were being called up, which the prosecutor saw as inappropriate behavior raising concerns as to whether the prospective juror was dealing with it seriously enough, and (2) Mr. Russell was a victim of a drive-by shooting in 1990, which he described as random. The prosecutor said: "I will freely concede that there are a number of times when people's houses are shot up for completely random purposes, but I don't know for sure, and it doesn't sound like from his answer, that he even knew for sure either. [¶] Now, if somebody is shooting up his house, then the next question is why? Why is he being singled out for that sort of thing? [¶] That raises concerns in my mind that he has got some ties with some people who may have had criminal backgrounds in Southern California where that incident occurred. [¶] Again, I am not in a position where I can start checking these things out. All I can go on is the clues that are left with me during the course of voir dire examination; and, frankly, that clue left me with very real concerns.
On voir dire, Mr. Russell was asked:
"Q. [W]as it just a random sort of thing, Mr. Russell?"
"A. Um —
"Q. Do you think it was someone that knew you?
"A. — I don't think it was anybody who knew me. I think it was more random."
"And lastly, . . . [¶] . . . when the Court got to the point in time where it was questioning the different jurors about unpleasant experiences with law enforcement officers, [the prospective juror] never did raise his hand, but he did virtually everything but. He was shifting in his chair, he was moving his eyes.
"THE COURT: I expected him to respond, frankly.
"[Prosecutor]: He was — I was writing this down — `heavy sighs.' I wrote down at one point, several times he had heavy sighs while the Court was discussing that issue, was moving his hand. [¶] Again, I have no way of knowing more about this man's background than what we were getting during the course of the voir dire examination, but ultimately with those three things in my mind, I did not feel I could take the chance of leaving him on this panel. [¶] As the court is aware, I need 12 votes. This is a matter obviously of some importance to me. . . ." The prosecutor went on to say he tended to use peremptory challenges on minorities sparingly to avoid appearing bigoted to the other jurors.
After hearing argument from the defense, the trial court ruled: "The Court is not satisfied that sufficient grounds have been established that the challenges heretofore exercised by the People were violative of Wheeler, and the motion to excuse the panel is denied."
B. Analysis
Defendant contends the trial court erred in denying his Wheeler motion. We disagree.
The Supreme Court recently reiterated the Wheeler principle in People v. Jackson (1996) 13 Cal.4th 1164, which stated:
"`[P]eremptory challenges may not be used to remove prospective jurors solely on the basis of presumed group bias. . . . [T]he Equal Protection Clause forbids peremptory challenges of potential jurors solely on account of their race when the defendant is a member of that race. . . . [¶] . . . [I]f a party believes his opponent is improperly using peremptory challenges for a discriminatory purpose, he must raise a timely challenge and make a prima facie case of such discrimination. Once a prima face case has been shown, the burden shifts to the other party to come forward with an explanation that demonstrates a neutral explanation related to the particular case to be tried. . . . [¶] . . . [W]e will "rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination." . . . The trial court, however, must make "a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . ."'" ( People v. Jackson, supra, 13 Cal.4th at pp. 1195-1196.)
"`If the trial court makes a "sincere and reasoned effort" to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. In such circumstances, an appellate court will not reassess good faith by conducting its own comparative juror analysis. Such an approach would undermine the trial court's credibility determinations and would discount "`the variety of [subjective] factors and considerations,'" including "prospective jurors' body language or manner of answering questions," which legitimately inform a trial lawyer's decision to exercise peremptory challenges.'" ( People v. Jackson, supra, 13 Cal.4th at p. 1197.)
Jackson held the trial court did not abuse its discretion in denying a Wheeler motion where the prosecutor used three of eighteen peremptory challenges to remove blacks from the jury, and no blacks served on the defendant's jury. ( People v. Jackson, supra, 13 Cal.4th at p. 1195.)
"Jurors may be excused based on `hunches' and even `arbitrary' exclusion is permissible, so long as the reasons are not based on impermissible group bias. [Citation.] [¶] There is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner. [Citation.] We give great deference to the trial court in distinguishing bona fide reasons from sham excuses. [Citation.]" ( People v. Turner (1994) 8 Cal.4th 137, 165.)
Citing People v. Turner (1986) 42 Cal.3d 711, defendant asserts the standard of review is de novo. However, Turner said the reviewing court will ordinarily defer to the trial court's factual findings, though "the issue whether a given explanation constitutes a constitutionally permissible — i.e., nondiscriminatory — justification for the particular peremptory challenge remains a question of law." ( Id. at p. 720, fn. 6.)
Here, even assuming a prima facie case was shown, defendant on appeal fails to show grounds for reversal. Defendant does not challenge the prosecutor's justification for excusing the prospective juror whose brother was being prosecuted for sexual assault. Defendant instead focuses on the other prospective juror, Mr. Russell, who was excused because (1) he was reading in the jury box, (2) he was the victim of a drive-by shooting and appeared uncertain whether it was random, and (3) his body language betrayed discomfort with the question about unpleasant experiences with law enforcement. We see no reason to disturb the trial court's denial of the Wheeler motion.
Defendant suggests the prosecutor is a racist because he inappropriately drew an inference that when a black crime victim is shot at, the black victim must be involved in criminal activity. Defendant's argument misstates the record. The prosecutor based his decision not merely on the fact of the shooting but on other factors, including his observations that the prospective juror appeared uncertain whether it was a random shooting, and the observation — shared by the trial court — that the prospective juror reacted physically (though not verbally) when the jurors were asked about bad experiences with police. Contrary to defendant's suggestion, the prosecutor was not required to demand a verbal response from the prospective juror. Defendant's point that the body language may have signified something innocuous such as a stomachache does not undermine the prosecutor's decision or the trial court's ruling, under the foregoing legal standards allowing the use of peremptory challenges based on hunches. Defendant claims discrimination is shown by the very fact that the prosecutor and the trial court noticed the prospective juror's body language, which assertedly means they "singled [him] out." This argument is nonsensical and offensive.
Defendant argues the prosecutor's reasons for excusing Mr. Russell were pretextual because the prosecutor did not excuse other prospective jurors with similar characteristics. Despite the California Supreme Court's holding that a reviewing court should not conduct its own comparative analysis (e.g., People v. Jackson, supra, 13 Cal.4th at p. 1197), defendant cites federal circuit court of appeal cases for the proposition that an appellate court must perform a comparative analysis if a prosecutor's reasons for excusing prospective jurors appear pretextual because the prosecutor did not excuse non-black persons with similar characteristics. ( Devose v. Norris (8th Cir. 1995) 53 F.3d 201, 204-205; Walton v. Caspari (8th Cir. 1990) 916 F.2d 1352, 1362; U.S. v. Chinchilla (9th Cir. 1989) 874 F.2d 695, 698-699.) However, we rejected a similar reliance on federal cases in People v. Dunn (1995) 40 Cal.App.4th 1039, 1050. We said, among other things, that we were bound by stare decisis to follow the California Supreme Court's directive. ( Id. at p. 1050, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We also observed the federal courts are split on the subject, and we were not persuaded by the analysis in those federal opinions which advocated a comparative analysis by the reviewing court. ( People v. Dunn, supra, 40 Cal.App.4th at pp. 1050-1051.)
We note the Jackson court was aware of the federal cases, as reflected by the separate concurring opinion of Jackson's author, Justice Mosk. ( Jackson, supra, 13 Cal.4th at p. 1249, conc. opn. of Mosk, J. [expressing view (contrary to majority view) that reviewing court should engage in comparative analysis, in line with cited federal cases].)
Defendant cites the concurring opinion in Dunn, which stated: "But if comparative data may not be used to show that the reasons offered for striking Black jurors are pretextual, such data also may not be used to show they were not pretextual, as the majority suggests. What may be shown at this (third) stage of review is the `persuasiveness of the justification.' [Citation.] . . . `[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.'" ( People v. Dunn, supra, 40 Cal.App.4th at p. 1056, conc. opn. of Blease, J.) Here, the prosecutor's justifications were not implausible or fantastic.
Although we conclude a comparative analysis by this court is not appropriate, we note defendant would not prevail even under a comparative analysis. Thus, the only similarity cited by defendant is that other prospective jurors were reading. However, defendant fails to show other prospective jurors were reading in the jury box, which was the prosecutor's observation with respect to Mr. Russell. Defendant merely cites his attorney's comment during the Wheeler motion that other people were reading in the audience and one prospective juror "was reading the newspaper as he came up to sit into the jury box. I noticed that, a folded newspaper." Defendant also cites his trial counsel's comment that other people on the jury "did not raise their hands to the trial court's questions they had answered in the jury questionnaire . . . ." However, defendant fails to show how this is similar to Mr. Russell's situation, where the issue was not necessarily his failure to respond verbally, but his body language. Thus, defendant fails to show any comparison.
We conclude the Wheeler motion was properly denied.
III. Section 1108
Defendant makes various arguments with respect to admission under section 1108 (fn. 4, ante) of the evidence of prior sexual offenses, i.e., the prior sexual incidents with Ida, Amber and Nicole. We shall conclude defendant fails to show any error.
Defendant first argues admission of evidence pursuant to section 1108 deprived him of his constitutional due process rights, by allowing him to be tried on character evidence. Second, defendant argues section 1108 impermissibly deprived him of the presumption of innocence by allowing evidence of prior criminal accusations against him to be proven by a mere preponderance of the evidence. Third, defendant argues section 1108 denied him his right to equal protection of the law. Fourth, defendant claims section 1108 violates the constitutional prohibition against double jeopardy by allowing the prosecution to retry defendant on prior charges of which he was previously acquitted.
Mixed in with his due process argument, defendant asserts in passing that section 1108 violates the constitutional prohibition against cruel and unusual punishment. We disregard this claim perfunctorily asserted without indication it is intended to be a discrete contention. ( People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)
Insofar as defendant makes a facial attack on section 1108, as opposed to its application to these facts, we have recently rejected most of these arguments in People v. Fitch (1997) 55 Cal.App.4th 172 (which was published the day before defendant filed his reply brief in this appeal), and see no reason to reconsider that decision. Thus, in Fitch we held section 1108, which permits the admission of character evidence to prove disposition, does not violate due process. ( Id. at pp. 178-184.) We further held section 1108 does not lessen the prosecution's burden to prove guilt beyond a reasonable doubt. ( Id. at pp. 182-183.) We said section 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial, because section 1108 by its own terms subjects the evidence to exclusion under section 352 ( Id. at p. 183.) We also held section 1108 did not allow the defendant to be convicted due to his status rather than his act, because the jury was instructed it could not convict him simply because it found he had a character trait that tends to predispose him to commit the crime charged. ( Id. at pp. 183-184.) We also held section 1108 does not violate equal protection, because the Legislature determined the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant's commission of other sex offenses. ( Id. at pp. 184-185.) We said the Legislature was free to address a problem one step at a time or even to apply the remedy to one area and neglect others. ( Ibid.)
Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Defendant's brief gives us no reason to reconsider our decision in Fitch. We note that here, as in Fitch, the jury was instructed that it could not convict defendant simply based on character. Thus, the jury in the present case was instructed in part: "You may not convict the Defendant merely because you believe that he committed another offense or because you believe that he has a character trait that tends to predispose him to committing the charged offense. [¶] Those assaults are not charged in this case and you may not find the Defendant guilty of the charges here because you feel he should have been found guilty of the earlier alleged assault. [¶] You may, however, consider the evidence, to the extent you find it to be true, as tending to show the defendant's character or propensity to commit forced sexual assault." We presume the jury followed this instruction. ( People v. Fitch, supra, 55 Cal.App.4th at p. 184.)
Defendant argues section 352 provides no effective check or balance to section 1108, because evidence of past sexual conduct inherently creates a substantial danger of undue prejudice, confusing the issues, and misleading the jury. We disagree. With respect to prejudice, "`The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] `Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" ( People v. Zapien (1993) 4 Cal.4th 929, 958.)
Defendant argues section 1108 deprives him of the presumption of innocence by allowing evidence of prior criminal accusations to be proven by a mere preponderance of the evidence. We agree (and the jury was instructed) that section 1108 evidence is subject to the preponderance-of-the-evidence standard of proof. (§ 115; People v. Tewksbury (1976) 15 Cal.3d 953, 965 [collateral facts need not be proven beyond a reasonable doubt]; People v. McClellan (1969) 71 Cal.2d 793, 804 [during guilt trial, evidence of prior crimes, offered to show common plan, may be proved by a preponderance of the evidence]; People v. Lisenba (1939) 14 Cal.2d 403, 429-430 [evidence of prior crime, admitted to show motive for current charged offense, was not subject to proof beyond a reasonable doubt].)
Section 115 provides in part: "Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence."
In People v. Fitch, supra, 55 Cal.App.4th at pp. 182-183, we did not expressly discuss the preponderance of evidence standard. Nevertheless, the fact that the prior offenses can be established by a preponderance of the evidence does not alter our conclusion that section 1108 does not impermissibly reduce the prosecution's burden of proof. Here, as in Fitch, the jury was instructed that in order to convict defendant of the current offense, it must find defendant guilty beyond a reasonable doubt, and it could not convict defendant merely because it believed he committed another offense or because it believed he had a character trait disposing him to commit the charged offense.
Defendant argues that section 1108 violates the double jeopardy clause by allowing him to be retried on charges of which he was already acquitted (the Nicole R. case). Assuming for the sake of argument that the issue has been preserved for appeal, the argument fails, because defendant was not retried on those charges. Indeed, the jury was instructed: "Those assaults are not charged in this case and you may not find the Defendant guilty of the charges here because you feel he should have been found guilty of the earlier alleged assault." We note the California Supreme Court has held the double jeopardy clause is not violated by use at the penalty phase of a capital prosecution of past criminal conduct for which the defendant has been convicted and punished. (E.g., People v. Osband (1996) 13 Cal.4th 622, 711; People v. Melton (1988) 44 Cal.3d 713, 756, fn. 17.)
In his reply brief, defendant develops an argument that the relitigation of his intent, an ultimate fact in the prior case which ended in acquittal, violated the constitutional prohibition of double jeopardy because the acquittal in the prior case barred relitigation of the issue in the present case. This argument appears to derive from the general legal principle, cited in the Attorney General's brief, that the double jeopardy clause prevents the state from (1) retrying final verdicts, (2) exacting multiple punishments, and (3) relitigating for criminal purposes any facts finally resolved in the defendant's favor in a prior criminal proceeding (the "collateral estoppel" rule). ( People v. Melton, supra, 44 Cal. 3d at p. 756, fn. 17.) The People argued none of the three prohibitions was implicated in this case. With respect to the third, the People argued the evidence in this case was relitigated for an evidentiary purpose, not a criminal purpose. In his reply brief, defendant calls this sophistry.
The federal and state double jeopardy clauses provide that the state cannot place a person "twice . . . in jeopardy [of life and limb]" for the same offense. (U.S. Const., Amend. V; Cal. Const., art. I, § 15.)
Defendant relies on Ashe v. Swenson (1970) 397 U.S. 436 [25 L.Ed.2d 469], which held that the due process clause incorporates the doctrine of collateral estoppel. There, masked gunmen robbed several men engaged in a poker game. The defendant was tried in state court for the robbery of one of the players. He was acquitted. Six weeks later, the defendant was brought to trial again in state court, this time for the robbery of another participant in the same poker game. ( Id. 397 U.S. at pp. 439-440 [25 L.Ed.2d at pp. 472-473].) The United States Supreme Court held the federal rule of collateral estoppel, which is embodied in the double jeopardy clause, barred the prosecution, since the single rationally conceivable issue in dispute before the jury was whether the defendant had been one of the robbers, and although the victim was different, under the circumstances the name of the victim had no bearing whatever upon the issue of whether the defendant was one of the robbers. ( Id. 397 U.S. at pp. 444-447 [25 L.Ed.2d at pp. 475-77].) Ashe stated the record was devoid of any indication that the first jury could rationally have found that a robbery had not occurred, or that the victim had not been a victim. ( Id. 397 U.S. at p. 445 [25 L.Ed.2d at p. 476].)
However, more recent United States Supreme Court authority (cited by the People in this appeal) holds that Ashe does not apply where, as here, the presentation of the issue after acquittal involves a lesser standard of proof. Thus, Dowling v. United States (1990) 493 U.S. 342 [107 L.Ed.2d 708] held that an acquittal in a criminal case did not preclude the government from relitigating an issue when it was presented in a subsequent action governed by a lower standard of proof. There, the defendant, who had allegedly robbed a bank while armed and wearing a ski mask, was tried in federal court. During the trial, the prosecution, relying on a federal rule of evidence which allows evidence of prior bad acts for purposes other than character evidence, offered testimony by a woman who identified the defendant as a masked man who entered her home, armed and masked, two weeks after the bank robbery and lost his mask in a struggle with her. The prosecution offered the evidence to strengthen the identification of the defendant as the bank robber. The trial court allowed the evidence and told the jury that the defendant had been acquitted of charges stemming from intrusion into the woman's home. The United States Supreme Court upheld the admission of the evidence, rejecting the defendant's argument that it violated the double jeopardy clause. Dowling expressly declined to extend Ashe. ( Dowling, supra, 493 U.S. at pp. 347-349 [107 L.Ed.2d at pp. 717-718].) Dowling said that to introduce evidence on this point at the bank robbery trial, the government did not have to demonstrate that Dowling was the man who entered the home beyond a reasonable doubt. ( Ibid.) The Dowling court noted its decision was consistent with other cases holding that "an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof." ( Id. 493 U.S. at p. 349 [107 L.Ed.2d at p. 718].)
Here, the prior offenses were subject to a lower standard of proof (preponderance of the evidence) in their use as collateral evidence in the prosecution of defendant for different offenses. Thus, there is no double jeopardy violation.
Defendant argues Dowling is distinguishable because the evidence proffered there was proffered to show identification and modus operandi pursuant to the federal equivalent of section 1101, subdivision (b) (fn. 5, ante), and here the trial court denied admission of the evidence under section 1101, subdivision (b). This is not a basis for distinguishing Dowling on the double jeopardy issue.
We conclude defendant fails to show that admission of section 1108 evidence violated any of his constitutional rights.
Defendant also appears to complain that evidence of his prior sexual offenses should have been excluded under section 352 which is incorporated in section 1108. (See fns. 4 and 11, ante.) The trial court's exercise of discretion in admitting evidence under section 352 must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
We consider the points raised by defendant.
Defendant complains his prior accusers have grown up and presented themselves in this trial as mature, respectable citizens, unlike the young women of questionable reputation/credibility he suggests they used to be. However, defendant was able to explore this on cross-examination. Indeed, to support his point on appeal concerning his accusers' past lifestyles, defendant cites their cross-examination testimony. We see no error.
Defendant suggests the prior incidents were remote. However, although one prior incident dated back 13 years, the interim was not incident-free. Thus, the other two prior incidents occurred nine years and one year before the charged offense.
Defendant argues Ida was unable to recall many aspects of the alleged rape that took place over 13 years ago. He fails to explain how this hurt him. Instead, he cites Ida's failure to remember minor matters, such as what time they left for the store, and whether she and defendant discussed the age difference between them. With respect to Amber, defendant argues the admission of Amber's accusation now, "nine years later, when the evidence had all but dissipated," was unduly prejudicial because he was unable to refute the allegations. Defendant cites no specific instance, and the record fails to bear out his claim that the evidence had dissipated. Defendant asserts, without amplification, that evidence of the incident involving Nicole was unduly prejudicial and needlessly time consuming. We see no error.
Defendant complains the prosecution started its case with the testimony of the three prior accusers rather than Thersa A., the victim of the charged offenses. Defendant cites no authority supporting this supposed unfairness and we see no error.
Defendant complains the prosecutor in closing argument stated twice: "We're proving the Defendant raped because he is a rapist [using the term in a generic meaning of sexual offense]." Defendant also claims the prosecutor in closing argument depicted defendant as physically abusive, gratuitously violent, a sexual predator, and an arrogant egomaniac so full of nerve that he sued the county when he was acquitted of the prior charges, etc. Defendant says the prosecutor's theory was to establish defendant's character and status as a "rapist" and "sodomist" and that he was acting in conformity with that character. However, we need not decide whether the prosecutor crossed the line of permissible argument, because defendant failed to object in the trial court to any of the prosecutor's remarks, and thus defendant has waived the matter. ( People v. Medina (1990) 51 Cal.3d 870, 895.)
Defendant considers it significant that the trial court declined to admit the evidence under section 1101, subdivision (b), footnote 5, ante. He implies that if the evidence is not similar enough to be admitted under section 1101, it should not be admitted under section 1108. If that is defendant's argument, it is without merit. Under his reasoning, section 1108 would be superfluous. We note the trial court did not give the prosecution everything it wanted; the court excluded evidence of another prior assault.
Defendant points out he was acquitted in the case involving Nicole, and the jury which deliberated the Ida incident voted ten-to-two in favor of acquittal. However, these facts were brought to the jury's attention. The acquittal and deadlock did not compel exclusion of the evidence. Even an acquittal is not a finding of innocence. ( Dowling v. United States, supra, 493 U.S. at p. 349 [107 L.Ed.2d at p. 718]; People v. Tatum (1962) 209 Cal.App.2d 179, 186.) An acquittal is "`"merely . . . an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused."'" ( People v. Tatum, supra, 209 Cal.App.2d at p. 186, fn. 2.) As indicated, evidence admitted under section 1108 is not subject to the standard of proof beyond a reasonable doubt, but rather the preponderance of evidence standard. As indicated, section 1108 does not lessen the prosecution's burden of proving the defendant guilty of the charged offense beyond a reasonable doubt. ( People v. Fitch, supra, 55 Cal.App.4th at pp. 182-183.)
In a supplemental letter brief, defendant argues this case is similar to People v. Harris (1998) 60 Cal.App.4th 727, which was decided after initial briefing in this appeal. In Harris, we held the trial court abused its discretion in admitting evidence of a prior sex offense under section 1108, in the prosecution of a mental health nurse for sex offenses involving patients. However, Harris does not compel reversal in this appeal. In Harris, the prior offense involved a gruesome attack on a female tenant in an apartment complex managed by the defendant, but the jury in Harris was presented with an incomplete and distorted description of the prior incident. ( Id. at p. 733.) We concluded the evidence was extremely inflammatory. The charged offenses involved a breach of trust that was not shocking (accusations that the defendant licked and fondled an incapacitated woman and a former sex partner), while the evidence of the prior event incoherently described a vicious attack on a stranger without fully explaining the defendant's role. ( Id. at p. 738.) There was a probability of confusion, since the jury may have speculated as to the reason why the defendant was convicted only of burglary with infliction of great bodily injury and not convicted of rape or other offenses. ( Ibid.) The prior event was remote, having occurred 23 years earlier, with no similar offenses in the interim. ( Id. at p. 739.) The evidence necessitated lengthy jury instructions. The evidence of the very dissimilar event had little probative value; the evidence that the defendant committed a violent rape of a stranger, as the jury was led to believe, did not bolster the patients' credibility nor detract from the evidence impeaching their stories. ( Id. at p. 740.) Thus, Harris is distinguishable from this case.
In his supplement brief, defendant repeats the arguments we have already addressed. He also argues the evidence was inflammatory and unduly prejudicial. We disagree. He claims the witnesses' appearance and emotional display at trial gave a distorted description of events. He cites nothing supporting this claim.
Defendant argues there was a probability of confusion because the jury knew defendant had not been punished for the prior charges, and the prosecutor told the jury in closing argument that defendant was "guilty of each one of the crimes charged, and it is your responsibility now to hold him accountable for his conduct on the 1st of September, 1995." We disagree with defendant that the jury would be inclined to punish defendant for the past rather than current offenses. Defendant was charged with four counts in the September 1, 1995, incident, and it is thus apparent the prosecutor was referring to the current charges, and in any event defendant waived the issue by failing to object in the trial court. The instructions made clear to the jury that it could not convict defendant for the prior offenses or find him guilty of the current charges because the jury felt he should have been found guilty of the prior offenses. We see no probability of confusion.
The jury was instructed in part: "You may not convict the Defendant merely because you believe that he committed another offense, or because you believe that he has a character trait that tends to predispose him to committing the charged offense. [¶] Those assaults are not charged in this case and you may not find the Defendant guilty of the charges here because you feel he should have been found guilty of the earlier alleged assaults. . . . [¶] The question . . . before you, is whether the Defendant is guilty of the crime charged in this case, not whether he's guilty of any other offense."
Defendant asserts the evidence was time consuming, taking up 300 pages of the reporter's transcript, and cumulative. We disagree that the evidence was unduly time consuming or cumulative.
We conclude defendant fails to show error in admission of the evidence under section 1108. We therefore need not address defendant's argument concerning harmless error analysis.
IV. Prior Sexual Conduct Of Prior Accusor
Defendant argues the trial court erred in disallowing evidence of the prior sexual conduct of one of his prior accusors (Amber H.), denying him his constitutional right to confrontation and impeding his attempt to attack her credibility as a witness. We disagree.
A. Facts
On direct examination, Amber testified her apartment, where the sexual assault occurred, had no furniture at the time of the assault, because she was in the process of moving. The only items she had in the apartment were a portable television, a blanket, and some suitcases and miscellany. The photographic exhibits bear out this testimony, showing suitcases, a blanket, pillow, and miscellany such as a clock, broom, etc., on what appears to be a carpeted floor.
In cross-examining Amber, defense counsel asked:
"Q. And you indicated that you sat on a blanket there and watched TV for several hours, is that right?
"A. Correct.
"Q. This is a blanket that you used frequently to have sexual relations on, isn't that true?
"[Prosecutor]: Objection, relevance, 352.
"THE COURT: Sustained, objection sustained.
BY [DEFENSE COUNSEL]:
"Q. Isn't it true . . . that this blanket had semen stains on it?
"[Prosecutor]: Your Honor, I'm gonna object."
The trial court excused the jury. Defense counsel represented to the court that the blanket, which counsel characterized as a sort of "trophy blanket," contained semen stains of Amber's various sex partners, with hearts drawn around each stain and the donor's initials marked. The blanket itself no longer existed. The court and counsel discussed whether the rape shield law [§§ 782 and 1103 applied to preclude evidence of prior sexual conduct of the accuser. Defense counsel argued the blanket did not merely show past conduct but "it goes to the issue of consent, if she was perhaps thinking of adding [defendant] to her trophy. . . . [¶] If, if this blanket is something that she uses for sex all the time, it would suggest that, you know, it didn't just happen the way she said, that she laid the blanket out there in her apartment." The court noted Amber had almost no furniture in the whole apartment. Defense counsel retorted it was interesting that Amber kept the blanket there. Counsel also pointed out the victims of the prior offenses were more mature and all dressed up for court, and she wanted the jury to see how they were back at the time of the prior incidents.
Section 782 provides in part: "(a) In any prosecution [of certain sex offenses], if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed: . . . [¶] (4) . . . if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780 [credibility of witnesses generally], and is not inadmissible pursuant to Section 352 of this code, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. . . . [¶] (b) As used in this section, `complaining witness' means the alleged victim of the crime charged, the prosecution of which is bject to this section."
Section 1103 provides in part: "(c)(1) . . . [E]vidence of specific instances of the complaining witness' sexual conduct, . . . is not admissible by the defendant in order to prove consent by the complaining witness. . . . [¶] (5) As used in this section, `complaining witness' means the alleged victim of the crime charged, the prosecution of which is subject to this subdivision."
The trial court excluded the evidence, stating: "I'm not prepared to find that 1108 by inference repeals the rape shield law. I'm not going to do it. [¶] And so — and I'm not satisfied there's any particular nexus as, you know, obviously past sexual conduct or relationships with persons who might cause or [ sic] doubt the credibility as to the consen[s]ual act thereof is another matter, but that would be not evidence in this case [ sic]. [¶] I think the evidence goes purely to past sexual conduct. It's within the ambit of the rape shield law, and Court's going to exclude it . . . ."
B. Analysis
Defendant breaks his argument into two components, arguing (1) the trial court erred when it disallowed evidence of Amber's prior sexual conduct in attacking her credibility as a witness, and (2) the trial court's ruling denied defendant his constitutional right to confrontation.
1. Claim Of Evidentiary Error
With respect to defendant's first argument, he contends the rape shield law does not apply to a witness providing testimony of prior bad acts under section 1108. We need not address this argument because, even assuming for the sake of argument that he is correct, any error by the trial court in this regard was harmless.
Thus, the prosecutor also objected to the blanket on grounds of relevance and section 352 The trial court concluded the evidence went purely to past sexual conduct, implicitly finding that the blanket was not probative on the issue of consent. We agree the evidence was not probative on the issue of consent.
In order for the blanket to be probative of Amber's consent to have sex with defendant, there would have to be evidence of some circumstance tending to show that Amber took the blanket out on the occasion of defendant's visit in order figuratively to add another notch to her bedpost. However, there was no evidence or offer of proof in that regard. Defense counsel merely speculated: "If, if this blanket is something that she uses for sex all the time, it would suggest that, you know, it didn't just happen the way she said, that she laid the blanket out there in her apartment." There was no evidence or offer of proof that would tend to show Amber's state of mind in having the blanket there at that time and place. As noted by the trial court, Amber had very few items in the apartment. The evidence showed she was in the process of moving out of her apartment at the time of the encounter with defendant. Her testimony and the photographic exhibits show she had only a few items — television, blanket, suitcases, etc. — in the apartment. Given the disarray of a move-in-progress, the presence and use of the blanket say nothing about Amber's state of mind, on this record.
We thus conclude the blanket was not probative on the question of Amber's consent to have sex with defendant.
That leaves the question whether the blanket should have been admitted for the purpose of showing Amber's past sexual conduct. "The relevance of past sexual conduct of the alleged victim of the rape with persons other than the defendant to the issue of her consent to a particular act of sexual intercourse with the defendant is slight at best. The historical rule allowing the evidence may be more a creature of a one-time male fantasy of the `girls men date and the girls men marry' than one of logical inference." ( People v. Blackburn (1976) 56 Cal.App.3d 685, 690-691.)
Moreover, even assuming Amber's past sexual conduct was admissible, the blanket was not necessary, because Amber admitted in this trial that she had sex with other men, including the fact that at the time of the incident with defendant, she was pregnant by another man whom she did not consider to be her boyfriend. She also testified she once exposed her breasts to a group of people at a party. Thus, the blanket would be merely cumulative on the question of Amber's past sexual conduct.
As to impeachment, defendant claims he needed to use the blanket for impeachment because Amber depicted defendant as brutal, she was the only one who testified to having physically resisted defendant, and she could not recall some things. However, defendant fails to explain how testimony about the blanket would have impeached Amber. In the testimony cited by defendant, Amber could not recall having testified at the preliminary hearing that defendant asked her to be his girlfriend. Defendant also cites a portion of the trial transcript in which Amber said she never did a striptease. When asked whether she told a defense investigator that she did a striptease, she said she told him she pulled up her shirt and showed her breasts to everyone at a party when she was 18. Defendant also cites Amber's testimony that she did not recall telling a defense investigator that she had a black belt in karate, but she may have told him that (though it was not true). Defendant fails to explain how the blanket would have impeached Amber.
We conclude exclusion of the blanket evidence was proper.
2. Confrontation Clause
Defendant contends the trial court's refusal to allow him to cross-examine Amber about the blanket violated his rights under the Confrontation Clause, requiring reversal. We disagree.
"The confrontation clause guarantees the defendant in a criminal prosecution the right of cross-examination . . . . [Citation.] `It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.' ( Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [106 S.Ct. 1431, 1435, 89 L.Ed.2d 674] . . . .) . . . .
"The determination whether a defendant has been denied the right of confrontation is focused on the individual witness. The standard for determining if a confrontation clause violation has occurred is whether a reasonable jury might have received a significantly different impression of the witness's credibility had the defendant been permitted to pursue his proposed line of cross-examination. ( Delaware v. Van Arsdall, supra, 475 U.S. at p. 680 [106 S.Ct. at pp. 1435-1436].) If it is determined that trial court rulings limiting cross-examination of a witness have denied the defendant his right of confrontation, the error is subject to harmless-error analysis. `The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.' [Citations.]" ( People v. Greenberger (1997) 58 Cal.App.4th 298, 349-350, citing inter alia Delaware v. Van Arsdall (1986) 475 U.S. 673 [89 L.Ed.2d 674].)
We conclude, in line with our foregoing discussion, that exclusion of cross-examination about the blanket did not violate defendant's rights under the Confrontation Clause.
Even assuming for the sake of argument defendant should have been able to pursue cross-examination on the question of the blanket, any error is harmless beyond a reasonable doubt on this record. ( Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
V. Cumulative Error
Defendant contends the cumulative effect of the foregoing asserted errors requires reversal. We have reviewed the asserted errors and conclude there is no cumulative error supporting reversal of the judgment.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I, II, IV and V of the DISCUSSION.
_____________________________________ SIMS, Acting P.J.
We concur:
______________________________________ SCOTLAND, J.
_______________________________________ HULL, J.