Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08907825 Edward Sarkisian, Jr., Judge.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
In 2009, Larry Banks was convicted of the May 10, 1977, first degree murder of Susan Vallin. The jury found that he personally used a knife during the commission of that murder. Defendant appeals, challenging the admission at trial of evidence of a prior sexual assault and the related instruction.
FACTS
In 1977 Susan Vallin lived with her sister Barbara. Susan was dating Larry Ballesteros and Barbara was dating David Castillo. On the evening of May 10, 1977, Susan and Ballesteros got in an argument. Susan, Barbara, and Castillo, dropped Ballesteros off at a bar at 9:00 p.m. or 10:00 p.m. and then returned back to Susan’s apartment. Susan left and went for a walk.
Because several members of the Vallin family testified at trial we shall refer to them by their first names.
Catherine Meyers and Kim Foster were preparing to watch a television program when they heard an odd scream, described by Meyers as a “gurgling scream.” Foster grabbed a gun, told Meyers to call the police, and went outside. Meyers looked out a window. Meyers saw someone jogging by. The jogger was wearing a hooded sweatshirt and was carrying a knife. She described the individual as African-American, five feet eight or five feet nine inches tall, weighing 150 to 170 pounds. Meyers also said the jogger was agile and appeared to be under 30 years old. Foster saw someone jog by. The person was medium height and fairly slim, wearing a hooded sweatshirt. Foster thought the person was black.
The police department received a call at 10:43 p.m. that reported a woman screaming. Police officers responded to the area and found Susan’s body near a carport. She was unclothed except for her pants, which were around her left leg. She had shoes on and was wearing jewelry. She did not have any money on her person or in her clothing. There was dirt on her buttocks and back side. A blood trail led across the alley to a secluded area.
Homicide investigators determined that it was likely that Susan was initially attacked in a concealed area between a fence and a shed. In that area, the dirt was disturbed and there was a pool of blood, blood splatters, her blouse and a cigarette.
It was approximately a 13-minute walk between Susan’s residence and where her body was found. Police went to the home of Susan’s relatives to notify them of her death. Ballesteros was there and the family was arguing with him.
Ballesteros went to the police station and gave a statement. He told police that he and Susan argued after which he went to a bar and stayed until closing. He said the owner of the bar and the waitress could confirm that he was at the bar during the time he claimed to be there. He said he returned to Susan’s by taxi. When he returned he was confronted by members of Susan’s family.
At trial Ballesteros recalled the evening a little differently. He said he was drinking at the bar. He left with three women and they dropped him off at about 11:30 p.m.
Susan sustained three stab wounds to the right side of her neck. One of the wounds was lethal. The cut was from a knife with a two-edged blade. She suffered many abrasions, bruises and some lacerations. She had a deep bruise to the right side of her forehead that occurred before she was stabbed and she had a bruised lip. The abrasions on her face were from a blunt blow. The abrasions on her back could have been because she was on her back on gravel when she was attacked. She had abrasions above and below her knees and abrasions on her arms. Because of the way blood was dripping, Susan may have been on her knees when she was stabbed. The location of the stab wounds were consistent with the attacker holding the knife in his left hand. The injuries did not compare to a normal kitchen knife. There were no abrasions or evidence of forced sexual penetration.
Due to advancements in DNA testing, investigators decided, in 1999, to test Susan’s clothing. There were visible stains on the blouse and on the pocket and crotch area of the jeans. Because DNA had not been collected from Susan at the time of her murder, reference samples of DNA were obtained from her parents.
A criminalist retrieved DNA from a sperm stain on the blouse. She put the DNA profile in the system and it came back with a “hit” for defendant. Officers obtained a DNA sample from defendant, who was in prison.
One of the samples on the blouse contained a combination of DNA from defendant and a child of John and Grace Vallin (Susan’s parents). There was a mixed profile obtained from the jeans sample. The major portion of the profile was consistent with defendant. The minor portion was from a child of John and Grace Vallin. The criminalist was able to make a statistical statement from a sperm stain on the blouse that was not a mixture. This stain matched defendant’s profile. The DNA profile is expected to occur in a randomly selected individual in approximately 1 in 12 trillion African-Americans; approximately 1 in 150 trillion Caucasians; and approximately 1 in 900 trillion Hispanics. None of the DNA extracted from Susan’s clothing matched Larry Ballesteros; there was a sample from the jeans indicating a possible third contributor.
Defendant was released on parole on March 17, 1977. Following his release he lived with his mother for two or three months. She testified that he was left-handed and of average, thin build.
Defendant is five feet seven inches tall. The distance between his mother’s house and where Susan lived was approximately one-tenth of a mile. The distance between where Susan’s body was found and defendant’s mother’s house was eight-tenths of a mile.
The court allowed the people to present evidence of a former sexual assault by defendant. L.P., formerly L.M., testified that in 1971 she and her husband owned a fruit stand. She was in the back room with her husband when two young “kids” entered their business. One of the individuals had a rifle. Defendant was one of the individuals. L.P.’s husband was told to get on the floor. Defendant told L.P. to get on her knees. He hit L.P. with a rifle, unzipped his pants and pulled L.P’s pants down. He used her pants, which were hanging on one leg, to trip her. Defendant then sat on her chest trying to force her to open her mouth. He choked her and hit her in the head with the butt of the rifle. Defendant and the other assailant heard sirens and then ran out of the business. L.P identified defendant from a photographic lineup and again at the preliminary hearing.
It was stipulated at trial that defendant was the person who attacked L.P. in 1971, that he pled guilty to first degree robbery, and that one count of robbery and one count of assault to commit rape were dismissed.
DEFENSE
Susan’s sister Mary was 17 years old, her sister Rose Marie was 11 years old, and her sister Jennie was 13 years old at the time Susan was murdered.
Mary testified that when Larry Ballesteros arrived in a taxi cab after Susan had been murdered he looked up and grinned like he knew something “was up.” Someone said that Ballesteros had some bloody clothes that he hid. She, her father, and sister found some clothes and took them to the police. The police told her father to leave Fresno and not come back.
Rose Marie testified that on the day of Susan’s murder she was at Susan’s apartment. She saw Ballesteros putting a kitchen knife in his sock. She did not tell anyone about the knife until years later.
Jennie testified that she was at Susan’s apartment when Ballesteros came over at 4:00 p.m. or 5:00 p.m. He tried to get Jennie to go in the other room with him. She did not go into the other room because she did not trust him. She also saw Ballesteros walking from where Susan was killed. He was wearing different clothes than what he had worn earlier in the day and was not carrying his knife, which he usually carried with him.
R.M. testified that Ballesteros raped her in 1983. He told her that if she did not do what he asked, he would kill her like he had killed his girlfriend.
THE EVIDENCE CODE SECTION 1108 EVIDENCE
Prior to trial defendant made a motion to exclude evidence of uncharged sexual offenses. He argued the evidence was inadmissible under Evidence Code sections 1101, 1108 and 352. The People disagreed.
The People sought to admit two prior assaults by defendant, one when he was a juvenile and the other, the attack on L.P. The prosecutor argued the attack on L.P. and the attack on Susan were very similar, both were struck in the face with an object, both had their pants pulled down and left hanging on one leg, and the dirt marks on Susan’s backside suggested defendant sat on her chest in a manner similar to his attack on L.P.
Defendant argued the L.P. assault should be excluded under Evidence Code section 352 because it created a substantial danger of undue prejudice. Defendant claimed that the sexual assault could not be disentangled from the robbery and presenting the robbery evidence to the jury would be outside of Evidence Code section 1108 and would be prejudicial. The main thrust of his argument was that the L.P. incident was a brutal and violent attack brought in to bootstrap a circumstantial-evidence-murder case.
The court excluded the evidence of defendant’s sexual assault committed when he was a minor. As to the assault on L.P., the court acknowledged that defendant’s position was that he was not currently charged with a sexual offense, the prior act was remote, and its admission would be unduly prejudicial. The court found, however, that the relevancy and probative value far outweighed any prejudicial effect, noting in particular the striking similarities between the two assaults. The court said it was not admitting the evidence on the question of motive to the extent that the People would argue that Susan was killed in order to prevent her testimony against defendant if he were apprehended or became a suspect in the sexual assault.
Prior to hearing the testimony of L.P., the court gave a limiting instruction to the jury. L.P. then testified as previously set forth.
During closing arguments to the jury, the district attorney pointed out the similarities between the crime against L.P. and the murder of Susan Vallin. He characterized the evidence as propensity evidence and told the jury that if they found that defendant did it before, they may find that he had the propensity to commit sexual assaults against women. The district attorney made these statements with the caveat that the jury could not base their decision of guilt solely on the fact that such an act had been done before.
Defense counsel argued that the sexual assault charges involving L.P. were dismissed and defendant was convicted of robbery. He said defendant is a robber.
The district attorney countered this argument by stating the L.P. evidence is highly relevant and shows propensity. He said that defendant is a violent rapist, and he did the same thing before.
During the instructions to the jury the court again instructed them on the limitations that apply to the use of prior sexual-assault evidence.
I. Ex Post Facto
“Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. [Citation.] However, the Legislature has created exceptions to this rule in cases involving sexual offenses [citation] and domestic violence [citation].” (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) Evidence Code section 1108 was added in 1995 and provides in part that “[i]n 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 [s]ection 1101, if the evidence is not inadmissible pursuant to [s]ection 352.”
Defendant contends Evidence Code section 1108 alters the legal rules of evidence permitting convictions based on less or different testimony than previously allowed. Because it was enacted after the offense occurred, he claims that admission of evidence under section 1108 violates ex post facto principles.
“The proscription against the ex post facto application of laws has several components, each of which is designed to prevent a criminal defendant from being unfairly disadvantaged by a change in the law occurring between the time of the crime and the time of trial.” (People v. Flores (2009) 176 Cal.App.4th 1171, 1176 (Flores).) In Calder v. Bull (1798) 3 U.S. 386, four categories of ex post facto laws were set forth. “‘“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.”’” (Flores, supra, 176 Cal.App.4th at pp. 1176-1177.)
Defendant claims the addition of Evidence Code section 1108 after his crime was committed falls into the fourth Calder category. Defendant relies primarily on the case of Carmell v. Texas (2000) 529 U.S. 513 (Carmell), a fourth Calder category case. In Carmell, “the defendant was charged in a Texas criminal court with sexually molesting his stepdaughter while she was between 14 and 16 years old. When the crimes occurred, state law provided that ‘“[a] conviction [for sexual assault]... is supportable”’ either if it was corroborated by evidence independent of the victim’s testimony, or if the victim informed a third person of the offense within six months of its commission. [Citation.] The same statute recognized an exception to the corroboration and ‘outcry’ requirements for victims under the age of 14, such that their testimony could sustain a conviction even in the absence of any corroboration or outcry evidence. If the statutory requirements were not met, either because corroboration or outcry was lacking, or because the victim was not under the age of 14 when the crime occurred, then the defendant could not be convicted and the trial court would be compelled to enter an acquittal. However, compliance with the statute allowed the jury to decide the case and enter a guilty verdict. [Citation.]
“After the defendant committed the charged crimes, an amendment to the relevant statute expanded the child-victim exception, and allowed sexual assault convictions to rest solely on the testimony of victims under the age of 18. The amendment, which was applied in the defendant’s trial, relieved the prosecution of its duty under prior law either to corroborate the stepdaughter’s account or to establish that she disclosed the crime within six months. The trier of fact convicted the defendant based solely on the stepdaughter’s testimony. [Citation.] The judgment was affirmed on appeal in state court. To reach this result, the appellate court used a principle approved in Collins, supra, 497 U.S. 37 [Collins v. Youngblood (1990) 497 U.S. 37, 43], that exempted ordinary ‘evidentiary rules’ from the ex post facto ban. [Citations.]
“In a five-to-four decision, the United States Supreme Court rejected the intermediate court’s approach in Carmell. The majority first examined the 300-year-old Fenwick’s case. There, Parliament retroactively reduced the number of witnesses needed to sustain a treason conviction in order to successfully prosecute certain political enemies of the Crown. [Citation.] The majority observed that Justice Chase, who studied both Fenwick’s case and common law treatises on the subject, framed the fourth ex post facto category in Calder, supra, 3 U.S. (3 Dall.) 386, 390, to prevent such a scenario. [Citation.] The majority explained that just as the law in Fenwick’s case originally required more than one witness’s testimony to sustain a treason conviction, Texas law at the time of the defendant’s crimes required more than the stepdaughter’s testimony to support a sex crime conviction. Postcrime changes requiring only one witness in Fenwick’s case, and eliminating the corroboration and outcry requirements in the defendant’s case, suffered from the same flaw in the majority’s view—reducing ‘the quantum of evidence necessary to sustain a conviction.’ [Citation.]
“The Carmell majority further explained that this view of the fourth Calder category serves interests similar to other ex post facto proscriptions against laws altering the definition of crimes or the quantum of punishment. ‛In each of these instances, the government subverts the presumption of innocence by reducing the number of elements it must prove to overcome that presumption; by threatening such severe punishment so as to induce a plea to a lesser offense or a lower sentence; or by making it easier to meet the threshold for overcoming the presumption. Reducing the quantum of evidence necessary to meet the burden of proof is simply another way of achieving the same end.... [T]he government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction.’” (John L. v. Superior Court (2004) 33 Cal.4th 158, 177-178.)
Defendant contends that the inference created by Evidence Code section 1108 is a sufficiency of the evidence rule as that term was used in Carmell. He admits that section 1108 does not directly reduce the prosecutor’s burden of proof, but argues it nevertheless makes it easier for the prosecution to establish guilt.
Defendant’s argument was rejected in Flores, supra, 176 Cal.App.4th 1171; a case involving the admission of prior acts of domestic violence pursuant to Evidence Code section 1109.
“Sections 1108 and 1109 are ‘complementary portions of the same statutory scheme.’ [Citation.] Section 1108, which allows admission of evidence of uncharged sexual offenses, and section 1109, allowing admission of evidence of uncharged domestic violence, are ‘virtually identical, ’ and cases which have interpreted section 1108 have been relied upon to resolve similar issues involving section 1109.” (People v. James 191 Cal.App.4th 478, 482, fn. 2.)
Defendant contends Flores is wrongly decided because it fails to recognize that Evidence Code section 1109 is a sufficiency of the evidence rule, as that term is used in Carmell. The Flores court analyzed Carmell and other cases and concluded that appellant’s argument, which is the same argument made here, “ignores that the fourth category bars the government from changing rules involving the legal sufficiency of the evidence, not the admissibility of a particular piece of evidence bearing upon a particular fact to be proved.” (Flores, supra, 176 Cal.App.4th at p. 1177.)
The Flores court read the Carmell court’s decision regarding the Calder fourth category of ex post facto principles as limiting that category “to those changes in the rules of evidence that have the practical effect of lowering the ‘“quantity or the degree of proof”’ required to convict [citations]—in other words, evidentiary changes that reduce the legal sufficiency of the evidence necessary for a finding of guilt.” (Flores, supra, 176 Cal.App.4th at p. 1178.)
“‘The issue of the admissibility of evidence is simply different from the question whether the properly admitted evidence is sufficient to convict the defendant. Evidence admissibility rules do not go to the general issue of guilt, nor to whether a conviction, as a matter of law, may be sustained.’” (Flores, supra, 176 Cal.App.4th at p. 1178.) The admission of the evidence did not change the elements of the crime or lower the prosecution’s burden of proof. (Id. at p. 1180.)
Defendant contends that Evidence Code section 1108 does more than merely make evidence that was previously inadmissible, admissible, it also allows the jury to use the evidence in a manner previously forbidden—as propensity evidence. It is alleged by defendant that such a utilization amounts to a “sea change in the law” that makes it substantially easier for a prosecutor to obtain a conviction.
Quoting from Carmell, the Flores court rejected a similar argument. “‘[Evidentiary] rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption. Therefore, to the extent one may consider changes to such laws as “unfair” or “unjust, ” they do not implicate the same kind of unfairness implicated by changes in rules setting forth a sufficiency of the evidence standard. Moreover, while the principle of unfairness helps explain and shape the Clause’s scope, it is not a doctrine unto itself, invalidating laws under the Ex Post Facto Clause by its own force.’ (Carmell, supra, 529 U.S. at p. 533, fn. 23;…)” (Flores, supra, 176 Cal.App.4th at p. 1180.)
We agree with the Flores decision and find the utilization of Evidence Code section 1108 to admit evidence, inadmissible at the time the crime was committed, is not a violation of the ex post facto clause. The admission of this evidence is not the functional equivalent of the statute found unconstitutional in Carmell, it does not lower the prosecution’s burden of proof and it does not change the elements of the crime of murder.
II. Weighing Prejudice vs. Probative Value
Defendant contends the trial court failed to properly evaluate factors concerning prejudice and probative value when it conducted the Evidence Code section 352 analysis as required by Evidence Code section 1108, subdivision (a).
Before getting to the merits of the argument, defendant claims the Evidence Code section 352 analysis engrafted into Evidence Code section 1108 performs an essential constitutional function. He argues that the legal issue here is his federal due process right to be free from undue prejudice caused by admission of evidence of uncharged offenses, thus the application of Evidence Code section 352 to this constitutional question creates a mixed question of fact and law requiring de novo review by this court.
The question is not a mixed question of law and fact subject to de novo review. The California Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, found that Evidence Code section 1108 does not violate due process. It held that the prospect of a fundamentally unfair trial is saved by the language in Evidence Code section 1108 requiring the court to review the evidence pursuant to Evidence Code section 352 before admitting it. (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Next, defendant argues the trial court erred in admitting the evidence because it was unduly prejudicial. In particular, defendant claims the sexual assault aspects of the L.P. incident were inextricably bound up with the robbery and the jury would thus be aware that defendant was convicted of robbery. It is argued that a prior robbery conviction is not admissible under Evidence Code section 1108. In addition, it is argued that the L.P. incident was particularly violent because it involved the use of a firearm, a type of weapon not used in the charged murder. Defendant asserts that the jury might have misused the evidence from the L.P. incident to infer that he was predisposed to violence, an inference also not permitted by Evidence Code section 1108. Defendant made these same arguments in the trial court and the trial court considered and rejected them.
“On appeal, we review the admission of other acts or crimes evidence under Evidence Code section 1108 for an abuse of the trial court’s discretion. [Citation.] The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is ‘entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence.’” (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1097.)
In admitting prior sexual offenses “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.” (People v. Falsetta, supra, 21 Cal.4th 903, 917.)
The trial court reviewed the legal issues of relevancy and undue prejudice. It stated that the evidence offered on the prior assault on L.P. established defendant’s responsibility for it and noted that there were striking similarities between that assault and the assault on Susan. Although the jurors learned of the robbery during L.P.’s testimony, the robbery aspect of the assault was mild when compared to the sexual assault of L.P. Also, the use of the gun during the assault of L.P. was highly relevant because it showed that a hard object was used to hit L.P. in the face, a type of beating similar to the one Susan received during the sexual assault. It was not the nature of the weapon that was relevant and highly probative; it was the use of a hard object to beat the victim. The fact that defendant had a gun was not unduly prejudicial, particularly since the evidence showed he did not use the gun except to beat his victim while sexually assaulting her. Although Evidence Code section 1108 allows evidence of prior sexual assaults to prove propensity, there is nothing in the section that precludes the admission of evidence of a prior sexual assault when it was violent. Defendant’s violent nature was demonstrated in the sexual assault, not the robbery. The trial court precluded the admission of another sexual assault by defendant.
The trial court did not abuse its discretion when it admitted evidence of the sexual assault against L.P. pursuant to Evidence Code section 1108.
III. Due Process
Disagreeing with People v. Falsetta, supra, 21 Cal.4th 903, defendant contends that the admission of prior criminal acts to prove propensity to commit the charged offense always violates fundamental due process principles. Defendant acknowledges that pursuant to Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 this court is bound to follow the decision of the California Supreme Court. He raises the issue because he believes the issue is ripe for review before the United States Supreme Court.
We are bound by the decision in Falsetta. The admission of prior sexual assaults to prove propensity does not violate due process.
IV. Limiting Instruction
Pursuant to CALCRIM No. 1191 the court instructed the jury on how to utilize the prior sexual assault evidence: “The People presented evidence that the Defendant, Larry Banks, committed the crime of assault with intent to commit rape, Penal Code section 220, but is not charged in this case. This crime is defined for you in the following instruction: [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant... in fact committed the uncharged offense. [¶]... [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. [¶] A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses. And based on that decision also conclude that the defendant was likely to commit a sexual assault resulting in the murder of Susan Vallin as charged here. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. [¶] A prior sexual assault is not sufficient by itself to prove that the defendant is guilty of the rape or attempted rape resulting in the murder of Susan Vallin. The People must still prove the charge and allegation beyond a reasonable doubt.” (Boldface and underlining added.)
Defendant states that he would not be challenging the instruction were it not for the underlined language in the passage quoted above. He contends that the emphasized language was erroneous because it permitted the jury to use the evidence of the uncharged act not only to show that he committed a sexual offense, but also that he committed murder. He claims that, by permitting the jury to use evidence of violence in the uncharged act to infer that he had a propensity to commit the violent act of murder, the trial court violated not only the permissible scope of Evidence Code section 1108, but also federal due process principles.
The courts have approved the general language of CALCRIM No. 1191. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013 (Reliford); People v. Cromp (2007) 153 Cal.App.4th 476, 480.)
“A jury may use ‘the evidence of prior sex crimes to find that defendant had a propensity to commit such crimes, which in turn may show that he committed the charged offenses.’ [Citations.]” (Reliford, supra, 29 Cal.4th at p. 1013.) CALCRIM No. 1191 instructs the trial court to insert the charged sex offense after “was likely to commit.” The charged offense for which the evidence is received is not, however, always a “sex offense.”
In People v. Story (2009) 45 Cal.4th 1282, the defendant was tried for first degree felony murder. (Id. at pp. 1290-1291.) At trial, the prosecutor sought the conviction on a felony murder theory with rape and burglary being the underlying felonies. (Id. at p. 1291.) The court found that the evidence of other sexual offenses committed by Story were properly received under Evidence Code section 1108. “[W]e conclude that a defendant accused of such a murder is accused of a sexual offense within the meaning of section 1108.” (Story, supra, 45 Cal.4th 1282at p. 1285.)
The defendant here was not charged with a sex offense (possibly due to the statute of limitations). He was charged with first degree murder and was prosecuted on two theories, one of which was felony murder with the underlying felony being a sex offense. The jury was instructed that to prove defendant committed first degree felony murder, the People must prove that he committed or attempted to commit rape, that he intended to do so, and that “while committing or attempting to commit rape, the defendant did an act that caused the death of another person.”
The court chose to fill in the blank in CALCRIM No. 1191 with “a sexual assault resulting in the murder of Susan Vallin.” Clearly, the sexual assault itself did not “result” in the murder of Susan Vallin. She did not die from the sexual assault. But, we do not believe that the phrasing used by the court carries the consequences alleged by defendant. The jury was told that if it found defendant committed the uncharged offense it had the option of choosing to conclude that he was disposed or inclined to commit sexual offenses. That portion of the instruction clearly limited the consideration of the uncharged offense to the question of disposition or inclination to commit sexual offenses. Based on that decision the jury could also conclude that defendant committed the sexual assault that ended with the murder of Susan Vallin. Any confusion was resolved by the felony-murder instructions which set forth that defendant must have committed or attempted to commit the sexual assault, must have intended to do so, and while doing so committed a further act that caused Susan’s death. The wording of the CALCRIM No. 1191 instruction merely directed the jury that their decision regarding the sexual assault propensity evidence was relevant to the charged crime of felony murder but limited to defendant’s disposition or inclination to commit sexual offenses. The instruction did not tell the jury that they could use evidence of violence in the uncharged act to infer that defendant had a propensity to commit the violent act of murder.
The instruction was not erroneous.
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, Acting P.J., POOCHIGIAN, J.