Opinion
Review Granted Jan. 30, 1992.
Previously published at 1 Cal.App.4th 354, 13 Cal.App.4th 338, 18 Cal.App.4th 1278, 7 Cal.App.4th 1486
David C. King, San Francisco, under appointment by the Court of Appeal, for defendant and appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Keith I. Motley and Laura Whitcomb Halgren, Deputy Attys. Gen., for plaintiff and respondent.
OPINION
MOORE, Associate Justice.
Defendant Jason Michael Balcom was charged with forcible rape (Pen.Code, § 261, subd. (a)(2)), burglary (Pen.Code, § 459), and robbery (Pen.Code, § 211). It was also alleged that in committing counts 1 and 3, defendant used a firearm. (Pen.Code, §§ 12022.3; 12022.5.) At his first trial, defendant was found guilty of robbery. But the jury failed to reach a verdict on the rape and burglary counts and the firearm use allegations.
Before retrial, the prosecutor informed the court and defense he intended to introduce evidence of another rape defendant committed in Michigan. Defense counsel objected, arguing actual consent would be the sole defense. The court ruled the evidence admissible. Defendant was found guilty of rape and using a firearm in the commission of that offense. He appeals contending the lower court committed reversible error at his second trial by admitting evidence of the uncharged rape.
Before the second trial, defendant objected to a retrial on burglary charge arguing that, under Penal Code section 654, it was barred by his robbery conviction. The lower court stayed a retrial on the burglary count.
FACTS
1. Prosecution Case-in-Chief
On July 24, 1988, Denise B. lived in a condominium. She shared the condominium with a roommate named Jace. At approximately 1 a.m., Denise was home alone watching television when she heard a knock at the front door. She observed a White male approximately six feet-one inch tall wearing a cap. He asked if a Mike lived there. Denise said no and the man left. Five minutes later, she heard another knock at the door. Looking through the front door's peephole, Denise saw a man wearing a cap and thought it was the same person she spoke to a few minutes before. This time, rather than open the door, Denise walked out onto her patio and peeked over the fence at the individual. He then turned and bolted toward the fence, climbing and vaulting over it. At that point, Denise noticed the man was Black and carried a rifle. Using a low voice, he told her to get inside.
Denise identified defendant as the assailant. She described him as six feet or six feet one-inch in height, wearing dark clothing, a black baseball cap with a white insignia on it and tennis shoes.
Defendant asked Denise for money. She told him her purse was in the bedroom and he ordered her to get it. Denise gave defendant all her cash, approximately $3 to $5. He asked for her bank automated teller machine (ATM) card and its personal identification number (PIN). Defendant told Denise that if the PIN was wrong "I'll come back and kill you." He began asking Denise about jewelry, started looking around her bedroom and then said, "Well, since you don't have anything looks like I'm going to have to rape you." Defendant told Denise to kneel. She pleaded with him, but he put the gun to her face and said, "Get on the floor." He tied Denise's wrists behind her back with a belt, used bandannas to gag her and then raped her. Defendant asked Denise, "Did it hurt? Did it feel good?"
Defendant went through Denise's jewelry again and took a watch and camera. He tied a belt around her ankles, told her he was a member of a gang and that gang members would kill her if she contacted the police. Defendant asked Denise what kind of a car she owned and where was it parked. She described the vehicle and its location. Defendant left also taking an orange towel with him. Denise, with some effort, succeeded in removing the gags from her mouth and contacting the police.
The police discovered Denise with her arms tied behind her back, a belt tied around her ankles and two bandannas hanging loosely around her neck. She was calm but in a state of shock. Her bedroom had been ransacked. Denise told the police her roommate had a problem with drugs. At first, she believed the assailant might know Jace and was trying to get to him. Later, she concluded Jace was not involved. Denise denied seeing Jace and defendant together or being in defendant's presence before the rape. When Denise went to check on her car it was gone.
Fingerprints found on a jewelry box in Denise's bedroom and on the camera matched defendant's. A criminalist who inspected samples of blood and body fluids from both Denise and defendant determined defendant fell within the semen donor profile of the person who attacked Denise.
Michael Baker testified that in the early morning hours of July 24 he was visiting a friend who lived in Denise's complex. Baker left his friend's apartment between 1 and 2 a.m. While walking to his car, Baker saw a Black man near Denise's condominium wearing a dark baseball cap and dressed in dark clothing carrying a long object with a gold-colored towel covering it. From the shape of the object and the way the man was carrying it, Baker assumed it was a rifle. Baker estimated the man was approximately six feet tall.
2. Defense Case-in-Chief
The defense presented two witnesses who saw Denise the day after the incident. She appeared calm and unemotional. The attorney who represented defendant at the preliminary examination also stated Denise remained calm, collected and very matter-of-fact during that hearing.
Mary Ray worked as a security officer for the complex. She saw defendant in the complex prior to July 24. On one occasion Ray saw defendant with another Black male walking towards Denise's condominium. She never saw him carrying a weapon. Saeid Hariri, the complex's property manager, testified Denise contacted him July 25 asking for a new key to the parking security gate. Since the number of her carport was not connected to her condominium address, Hariri asked Denise how her attacker found the car. Denise either gave no response or could not recall. Prior to July 24, Hariri had seen defendant on the premises several times. Hariri claimed that once he saw defendant speaking with Denise outside her condominium. On another occasion, he claimed to have seen them together by the jacuzzi. On cross-examination, Hariri admitted he did not mention seeing Denise and defendant together at the first trial, but claimed he was not asked about it. Hariri also admitted Denise filed a civil lawsuit against the complex arising out of the rape incident. The civil action settled before the second trial.
Defendant testified that in July 1988, he lived with his mother, aunt and a cousin in Costa Mesa. He met Jace through a friend named Charles Tate. Sometime between July 17 and July 20, Tate and defendant drove to the condominium. While Tate and Jace went into one of the bedrooms, defendant sat in the living room and spoke with Denise for approximately 20 minutes.
On July 22, Tate took defendant and went to see Jace apparently to deliver drugs to him. Defendant and Tate met Jace and Denise at the condominium. Tate and Jace left and drove to Costa Mesa. Defendant remained with Denise. At one point, they went to get something from her car. When Tate and Jace returned, Jace asked to buy a gold rope chain defendant owned. He agreed to sell it for $250 and gave Jace the chain in return for a promise to pay the money the next day.
On the evening of July 23, defendant returned to the condominium to get the $250 plus money Jace owed Tate from a drug transaction. Denise let him in and said Jace would return shortly. After talking for a while, the two went to Denise's bedroom, engaged in foreplay and had intercourse. The activity was consensual.
Denise then told defendant Jace had no intention of returning or of paying the money. Defendant became upset. He assumed Denise was involved in thetransaction with Jace and said she would have to pay. He retrieved Denise's ATM card from her purse and asked her for the PIN. She refused to give it to him. Defendant decided to take some "collateral" to ensure he was paid. He found a camera, placed it on the bed and began looking for other valuables. Denise threw the camera at defendant. He grabbed some belts and tied her arms and ankles. When she threatened to start screaming "rape," defendant gagged her with the bandannas. Denise finally gave defendant the ATM card's PIN. He denied having a gun with him at the time.
Defendant admitted taking Denise's camera, car keys, car and ATM card. He withdrew $200 from the ATM and pawned the camera for $20. The next day he located Jace in Costa Mesa. Jace told him Denise claimed he had raped her. Defendant decided to move to Michigan. He admitted suffering a conviction for criminal sexual assault in Michigan.
On cross-examination, defendant admitted being a track star and running the hurdles. While Denise did not verbally consent to have sex with him, in his mind he knew she wanted it because of their "eye contact and things like that." Defendant admitted trying to wipe away fingerprints in Denise's bedroom, but claimed her threat to charge rape left him no other choice. He denied being member of a gang but admitted having acquaintances in one. He also denied being with Denise by the jacuzzi.
3. Prosecution Rebuttal
The prosecution called Theresa H. She lived in Michigan. At 6:30 a.m. on September 2, 1988, while driving out of her apartment complex, Theresa saw defendant standing near the exit. He motioned to her and asked for the time and directions. Suddenly, defendant pulled a gun, pointed it towards her head, opened the door, shoved her to the other side and entered 4. Defense Surrebuttal
Four women expressed opinions that defendant was not sexually aggressive. All had heard about defendant's criminal conviction in Michigan. Two of them stated it had no effect on their opinion. Another testified she had not heard defendant forced the woman to have sexual intercourse with him.
Denise's former boyfriend testified that on the morning after the incident she came to his home and said she had been assaulted by two men, one of whom was Black and the other possibly Hispanic. They were able to steal her car because she took them to the vehicle. Defendant said the gun he used in the Michigan offense was a BB gun, but admitted that to an inexperienced person it might look like a handgun.
5. Jury Instructions
The court instructed the jury lack of consent is an element of the offense the prosecution must prove beyond a reasonable doubt, and gave an instruction on the defense of a reasonable good faith belief consent to sexual intercourse was given. Concerning the Michigan offense, it stated the evidence "was received and may be considered by you only for the limited purpose of determining if it tends to show: [p] A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of the intent which is a necessary element of the crime charged; [p] That the defendant did not reasonably and in good faith believe that the person with whom he engaged or attempted to engage in a sexual act consented to such conduct."
DISCUSSION
The question presented here is whether evidence of an uncharged rape is admissible in a rape prosecution where the defendant claims the alleged victim actually consented to have sexual intercourse with him. Defendant contends the testimony concerning his Michigan offense was not relevant to any disputed issue, merely showed his disposition to commit rapes, and the prejudicial effect of the evidence outweighed its probative value. Respondent argues the trial judge properly exercised his discretion in allowing the prosecution to introduce the evidence.
Generally, evidence in the form of specific conduct offered to prove a person's conduct on a certain occasion is inadmissible. (Evid.Code, § 1101, subd. (a).) However, evidence that a person committed a crime or other wrongful act may be introduced "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)...." (Evid.Code, § 1101, subd. (b).)
The Supreme Court has summarized the principles relevant to the admission of evidence of other crimes as follows: "The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect. [Citations.] When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, '[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.' [Citation.]" (People v. Daniels
Accordingly, we must first determine whether evidence of the Michigan rape was material to an issue in dispute. One reason for admitting it was to prove defendant's intent.
Some cases have held it is improper in a rape prosecution to admit evidence of uncharged rapes where the defendant relies solely on the alleged victim's actual consent. In People v. Key (1984) 153 Cal.App.3d 888, 203 Cal.Rptr. 144, the defendant was charged with kidnapping, forcible oral copulation, forcible rape and assault with a deadly weapon. Defendant admitted having sexual intercourse with the victim, but claimed it was consensual. The prosecution was permitted to introduce the testimony of another woman who had been assaulted by defendant raped and forced to orally copulate him.
The Court of Appeal reversed. "[F]irst, in a forcible rape charge of an adult victim, the witness' consent is placed in issue by the not guilty plea; second, the defendant's intent in a forcible rape is not directly relevant (except where he claims mistake of fact, accident, etc.). [p].... [Penal Code] [s]ection 261, subdivision (2) defines rape as sexual intercourse accomplished against a person's will. By definition, it is nonconsensual sexual intercourse. Therefore, whether the defendant testifies, or stands silent, the prosecution must establish the victim's nonconsent beyond a reasonable doubt along with all other elements of the corpus delicti. [Citations.] [p].... Because the defendant's intent is not an element of the corpus delicti of forcible rape ..., when consent is raised as a defense there is no new issue of the defendant's subjective intent; the defense only disputes the state of mind of the prosecuting witness. Evidence of defendant's prior conduct is, at best, only tangentially probative of this issue." (Id. at p. 895, 203 Cal.Rptr. 144.)
In People v. Bruce (1989) 208 Cal.App.3d 1099, 256 Cal.Rptr. 647, the defendant was charged with kidnapping and forcibly raping and robbing a woman. Before trial, the court ruled evidence of a prior rape by the defendant could be introduced to establish identity. After trial commenced, but before the victim of the prior rape testified, defendant stipulated to having sexual intercourse with the woman claiming his only defense would be actual consent. Nonetheless, the court admitted the prior rape evidence on the issue of whether defendant had a reasonable good faith belief the woman had consented.
The Court of Appeal reversed. In part, it rejected the People's contention the uncharged rape evidence was admissible to prove the defendant's intent. "When the defendant asserts a defense of consent but not a [reasonable good faith belief in consent] defense, the defendant's intent is unequivocal and the evidence is not admissible. [Citations.]" (Id. at p. 1106, 256 Cal.Rptr. 647, fn. omitted.)
Support for this rule also appears as dictum in a footnote of the majority's opinion in People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1. There the defendant was charged with kidnapping, forcible oral copulation and forcible rape. At trial, he testified the victim consented to the sexual acts. To show a common scheme or plan and to corroborate the victim's testimony, the prosecution was allowed to introduce evidence of two other incidents where defendant raped a woman and forced her to orally copulate him.
While affirming the conviction, the court found the admission of the other crimes evidence to establish a common plan and corroborate the victim was erroneous. (People v. Tassell, supra, 36 Cal.3d at pp. 83-89, 201 Cal.Rptr. 567, 679 P.2d 1.) In a footnote, the majority opinion indicated this evidence would also not be admissible to establish intent. "Here, however, there is The footnote in the majority's opinion in People v. Tassell, supra, 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1, was dictum (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1157, 278 Cal.Rptr. 614, 805 P.2d 873), because evidence of uncharged rapes was introduced to show a common design or plan and to corroborate the victim, not to establish defendant's intent. Thus, the footnote's language is not binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) Furthermore, we are not obligated to follow the holdings in People v. Key, supra, 153 Cal.App.3d 888, 203 Cal.Rptr. 144, and People v. Bruce, supra, 208 Cal.App.3d 1099, 256 Cal.Rptr. 647. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 456, 20 Cal.Rptr. 321, 369 P.2d 937.)
Contrary to the foregoing decisions, mere intent to have sexual intercourse is not sufficient to support a rape conviction. Penal Code section 261, subdivision (a)(2) defines forcible rape as an act of sexual intercourse "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." To commit the crime there must be a union of an act and wrongful intent. (Pen.Code, § 20; People v. Mayberry (1975) 15 Cal.3d 143, 154-155, 125 Cal.Rptr. 745, 542 P.2d 1337; People v. Vogel (1956) 46 Cal.2d 798, 801, 299 P.2d 850.) "[T]he 'wrongful intent' is the intent to sexually penetrate the victim and the intent to accomplish that act by force or fear." (People v. Burnham (1986) 176 Cal.App.3d 1134, 1140, 222 Cal.Rptr. 630. See also People v. Franklin (1976) 56 Cal.App.3d 18, 27, 128 Cal.Rptr. 94.)
While lack of consent is an element of the offense which the prosecution must establish, it does not follow the defendant's state of mind is irrelevant in a rape prosecution where the defense claims the purported victim actually consented to have sexual intercourse. If that were true, a mistake of fact defense would be unnecessary. "The intent at issue [is] the intent to have intercourse irrespective of or without the consent of the victim--i.e., by the use of force or fear. If that [is] not the intent required, how can reasonable belief there was consent be a defense to a charge of forcible rape?" (Frank v. Superior Court (1989) 48 Cal.3d 632, 642, 257 Cal.Rptr. 550, 770 P.2d 1119 (conc. opn. of Kaufman, J.); see also People v. Jackson (1980) 110 Cal.App.3d 560, 566, 167 Cal.Rptr. 915.) Therefore, we conclude defendant's intent was in issue even though he asserted a defense of actual consent at his second trial.
The second factor for the admissibility of other crimes evidence is that the evidence has a tendency to prove the disputed fact. "To be relevant, an uncharged offense must tend logically, naturally and by reasonable inference to prove the issue(s) on which it is offered. [Citations.] We have long recognized 'that if a person acts similarly in similar situations, he probably harbors the same intent in each instance'...." (People v. Robbins (1988) 45 Cal.3d 867, 879, 248 Cal.Rptr. 172, 755 P.2d 355.) While a showing of similarity between the offenses is required, "[i]t has been observed that when evidence of an uncharged offense is introduced to prove intent, the prosecution need not show the same quantum of 'similarity' as when uncharged conduct is used to prove identity." (Id. at p. 880, 248 Cal.Rptr. 172, 755 P.2d 355.)
The charged offense and the uncharged crime were substantially similar. In both cases, defendant confronted a woman in the early morning hours displaying a gun. At first defendant asked his victim for money. He then forced her to have sexual intercourse tearing some of her clothing in the process. He took the victim's ATM card, obtained the PIN, and stole her car. Thus, the Michigan rape was very much like the charged offense and highly probative of defendant's intent. The last factor is whether any rule or policy exists requiring exclusion of the other crime evidence. The only rule cited by defendant is Evidence Code section 352. That statute gives a trial judge discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice...."
When ruling on the issue, the trial judge recognized his obligation to weigh the probative value of the Michigan rape evidence against its potential prejudice. He concluded the evidence of the uncharged offense was admissible finding there was a lot of similarity between the crimes and they occurred close in time. Furthermore, he limited the jury's consideration of this evidence to two issues; defendant's intent and whether he reasonably and in good faith believed Denise consented. "[T]he general rule is that on appeal we must assume the jury followed the court's instructions and admonitions. [Citations.]" (People v. Frank (1990) 51 Cal.3d 718, 728, 274 Cal.Rptr. 372, 798 P.2d 1215.)
While the Michigan rape occurred after the charged offense, that fact does not affect its admissibility. Evidence of a subsequent crime is admissible where relevant to prove a material fact. (People v. Griffin (1967) 66 Cal.2d 459, 464-465, 58 Cal.Rptr. 107, 426 P.2d 507.) We conclude the decision to admit the evidence was not an abuse of discretion.
As noted, the lower court also admitted the other crime evidence to disprove a mistake of fact defense. Although his testimony certainly would have supported it, defendant did not assert this defense. Nonetheless, any error in instructing the jury it could consider the Michigan rape for this purpose was harmless. Because defendant disclaimed any reliance on a reasonable good faith belief Denise consented to have sex with him, the jury was not misled on an issue vital to the defense. (People v. Rogers (1943) 22 Cal.2d 787, 807, 141 P.2d 722.)
DISPOSITION
The judgment is affirmed.
SILLS, P.J., and CROSBY, J., concur.