Opinion
A128852
12-30-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN PARQUET, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C157464)
A jury convicted defendant John Parquet of first degree murder and found he committed the murder during the course of rape. At trial, over defendant's objections, the prosecution presented evidence of two other sexual offenses to show defendant's propensity to commit such crimes. On appeal, defendant challenges the trial court's decision to admit this evidence. He also seeks modification of the judgment to award credit for time he served in custody before sentencing and to assess only those fines appropriate under the circumstances. We modify the judgment and affirm as modified.
B ACKGROUND
In the early hours of a cold January morning in 1994, Lowanda Jackson left a friend's house in Oakland in search of cigarettes. She was found dead later that morning, lying naked on her back near an abandoned house on 84th Avenue. Oakland police arrived at the scene and, observing Jackson's body, noted bruising between her legs, white discharge coming from her vagina, and blood coming from her rectum. In the vicinity, police located Jackson's clothing and a recently-used, bloody condom. An autopsy identified additional bruising and indicia of violence and concluded Jackson died from strangulation.
Although Jackson's murder went unsolved for over a decade, police eventually reopened the case and linked the sperm found at the murder scene with defendant's DNA. A January 18, 2008, indictment charged defendant with the murder of Jackson (Pen. Code, § 187, subd. (a)) and alleged the special circumstance of murder during the course of rape (former § 190.2, subd. (a)(17)(iii)).
All further statutory references are to the Penal code unless otherwise indicated.
The prosecution wanted to present evidence at trial of defendant's involvement in two other instances of sexual misconduct: the April 1984 rape of Pamela M. and the September 1994 attempted rape of Sandra B.
On April 24, 1984, Pamela M. witnessed an argument between defendant and a female friend. When the friend ran off, Pamela M. followed her to see if she was all right. Defendant came up behind Pamela M., grabbed her shoulder, accosted her, and stabbed her multiple times with a knife. Pamela M. fell unconscious. When she regained awareness, she was naked in a pool of blood, and defendant's penis was inside her vagina. She fell unconscious again, next awakening in the hospital, where she received stitches for lacerations to her breast and neck. Defendant pleaded guilty to assault with a deadly weapon (§ 245, subd. (a)(1)) and rape (§ 261, subd. (a)(2)). Though sentenced to 14 years in prison, defendant was released after less than 10.
On September 28, 1994—just months after Jackson's murder—a police officer responded to a call and found defendant attempting to have intercourse with Sandra B., who was naked from the waist down. The officer heard Ms. B. moaning for help and defendant yelling vulgarities at her. Ms. B. had blood on her face, and there was blood on the ground and on the house nearby. Although defendant was charged with assault with intent to rape (§ 220), Ms. B died of lung cancer before trial, and the prosecution dismissed the case.
To obtain permission to present evidence of the Pamela M. and Sandra B. incidents, the prosecution, on November 19, 2009, filed a pretrial motion pursuant to Evidence Code section 1108. The same day, defendant moved in limine to exclude this evidence. After a hearing, the trial court orally granted the prosecution's motion and denied that of defendant. However, the trial court prohibited counsel from mentioning certain details of Pamela M.'s rape, namely that she had been stabbed in the rectum, still required use of a colostomy bag, and was pregnant at the time. At trial, it was understood defendant was making an ongoing objection to evidence concerning his prior sexual misconduct.
On January 4, 2010, a jury convicted defendant of Jackson's murder and found the murder occurred in the course of rape. On April 23, 2010, the court entered judgment according to the jury's verdict and sentenced defendant to life imprisonment without the possibility of parole. The written abstract of judgment did not give credit to defendant for 1,816 days already spent in custody. Also, the abstract of judgment indicated two fines: one for $2,000 under section 1202.4 and another for $2,000 under section 1202.45. However, the trial court, in its oral pronouncement of judgment, imposed only a $200 fine under section 1202.4 and stated any fine under section 1202.45 would never be collected because defendant's sentence did not include a period of parole.
Defendant filed a timely notice of appeal from the judgment on June 18, 2010.
DISCUSSION
Admission of Prior Sexual Offenses
"[E]vidence of a person's character or a trait of his or her character" including "evidence of specific instances of his or her conduct" is generally "inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) However, "[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 [the general rule of] Section 1101, if the evidence is not inadmissible pursuant to Section 352." (Evid. Code, § 1108, subd. (a).) Under Evidence Code section 352, "[t]he 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." (See People v. Story (2009) 45 Cal.4th 1282, 1294-1295 [Evidence Code "[s]ection 1108 preserves the trial court's discretion to exclude evidence under section 352 if its prejudicial effect substantially outweighs its probative value."].)
Defendant does not dispute the murder of Jackson during the course of rape, the rape of Pamela M., and the assault with intent to rape of Sandra B. are all "sexual offenses" under Evidence Code section 1108. Rather, defendant contends the trial court erred by not exercising its discretion under Evidence Code section 352 to exclude as prejudicial the evidence of the Pamela M. and Sandra B. incidents.
When deciding whether to exclude evidence of a sexual offense as prejudicial under sections 1108 and 352, " '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. Loy (2011) 52 Cal.4th 46, 61, quoting People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta); see also People v. Harris (1998) 60 Cal.App.4th 727 (Harris).) " ' "The prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citation.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors." ' [Citation.]" (Harris, supra, 60 Cal.App.4th at p. 737.)
Like any ruling under Evidence Code section 352, the trial court's ruling admitting the challenged evidence is subject to review for abuse of discretion. (People v. Story, supra, 45 Cal.4th at p. 1295; Harris, supra, 60 Cal.App.4th at pp. 736-737.) Our task is not to independently analyze and reweigh the various factors set forth in Falsetta or Harris. (See People v. Story, supra, 45 Cal.4th at p. 1295; People v. Carmony (2004) 33 Cal.4th 367, 378; see also Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 245 [when the standard is abuse of discretion "we do not reweigh . . . factors or substitute our notions of fairness for those of the trial court"].) " 'Under the abuse of discretion standard, "a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]' [Citations.]" (People v. Lewis (2009) 46 Cal.4th 1255, 1286.)
The trial court did not abuse its discretion here. It recited and reasonably applied the Harris factors. Although defendant argues in his brief that various factors favored excluding either the Pamela M. or Sandra B. incident, he does not come close to demonstrating the trial court's decision was arbitrary, capricious, or patently absurd.
As to the rape of Pamela M., the trial court reasonably concluded its facts were not unduly inflammatory or distracting, and were sufficiently similar to the rape and murder of Jackson. While, as defendant points out, Pamela M.'s multiple stab wounds were horrific, they were not necessarily more so than the circumstances of Jackson's strangulation. And though Pamela M. survived her encounter with defendant, Jackson did not. Moreover, the trial court was careful to prohibit reference to Pamela M.'s being stabbed in the rectum, her need for a colostomy bag, and the fact she was pregnant at the time of the rape. Further, the jury learned defendant had already been convicted and sentenced to prison for 14 years for the Pamela M. rape, reducing the likelihood it would punish him for that offense rather than the charged one. Finally, the 1984 rape of Pamela M.—though 10 years prior to Jackson's murder—was not necessarily too remote, especially in light of defendant's prison time. (See People v. Walker (2006) 139 Cal.App.4th 782, 807 [the defendant "was incarcerated for approximately 11 of those years, thus minimizing the remoteness"].)
As to the attempted rape of Sandra B., again, the trial court's decision was reasonable. Defendant contends it was unfair for the jury to learn that prosecutors dismissed the Sandra B. case when she died of lung cancer, because the jury might choose to punish him for that previously unpunished offense. While this concern is legitimate (People v. Frazier (2001) 89 Cal.App.4th 30, 41-42), it does not require exclusion of the unpunished offense, especially when the unpunished offense (attempted rape) is not as serious as the charged crime (murder during rape). (Ibid.; see People v. Wilson (2008) 44 Cal.4th 758, 798 [that the victim "declined to press charges and defendant was never convicted of the crimes against her is irrelevant to the question of admissibility, for Evidence Code section 1108 authorizes the admission of evidence not just of convictions but of a defendant's 'commission' of prior sex crimes"].)
We also reject defendant's argument that Evidence Code section 1108 is unconstitutional and deprived him of due process. Falsetta specifically rejected this argument. (Falsetta, supra, 21 Cal.4th at pp. 917-919.) The court held the balancing process under Evidence Code section 352 saved section 1108 from any constitutional infirmity. (Falsetta, at pp. 917-919.) We are bound by that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Finally, we need not consider defendant's argument that the trial court "would have erred" had it admitted evidence of the Pamela M. and Sandra B. offenses under Evidence Code section 1101. Having concluded the trial court properly admitted the evidence under Evidence Code section 1108, an 1101 inquiry is unnecessary. (People v. Callahan (1999) 74 Cal.App.4th 356, 372.)
Defects in the Abstract of Judgment
The parties agree that despite defendant's sentence of life imprisonment without the possibility of parole, he is entitled to credit for 1,816 days he spent in custody before sentencing. Further, the parties agree the fine under section 1202.4 should have been $200 as the court pronounced orally, and not $2,000 as stated in the abstract of judgment. (See People v. Price (2004) 120 Cal.App.4th 224, 242 ["oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes"].) Finally, the government does not challenge defendant's assertion that a parole revocation fine under section 1202.45 is inapplicable given his ineligibility for parole. (See People v. McWhorter (2009) 47 Cal.4th 318, 380 [striking fine under similar circumstances].) We therefore will direct that the judgment and abstract be modified accordingly.
DISPOSITION
We affirm the judgment with the following modifications: (1) defendant is awarded credit for the 1,816 days he served in custody before sentencing; (2) the fine under section 1202.4 is reduced from $2,000 to $200; and (3) the fine under section 1202.45 is stricken.
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Banke, J.
We concur:
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Marchiano, P. J.
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Margulies, J.