Opinion
F079083
05-27-2021
THE PEOPLE, Plaintiff and Respondent, v. TOMMY PONCE, SR., Defendant and Appellant.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Timothy L. O'Hair, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF359591)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden and Joseph A. Kalashian, Judges. Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Timothy L. O'Hair, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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INTRODUCTION
A jury convicted defendant Tommy Ponce, Sr., of rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3)) and rape of an unconscious person (§ 261, subd. (a)(4)); the court found true multiple enhancements, including eight prior prison term enhancements. (Undesignated statutory references are to the Penal Code.)
On appeal, defendant contends he is entitled to per se reversal of his convictions because the trial court violated his right to counsel of his choice by denying his request for a continuance to permit him to retain private counsel made a week before trial. He also argues insufficient evidence supported the knowledge element required to commit either of the charged offenses (that he knew of the victim's intoxicated or unconscious state). He further contends the court prejudicially erred in instructing the jury it could consider evidence of his prior sexual misconduct to negate mistake or accident. Finally, he asserts his prior prison term enhancements should be stricken in light of the passage of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136).
We strike defendant's prior prison term enhancements and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2017, Nicole was drinking at a park one afternoon with her boyfriend Jack, her sister Ashley, and friends. Nicole had started drinking earlier that morning before she got to the park. While at the park, Nicole continued drinking and took "shots." She felt drunk within an hour and started falling asleep. At trial, she testified she blacked out while at the park. She only recalled bits and pieces of the night. When Nicole "came to," it was completely dark outside and she and Jack were walking out of the park. She was "incredibly dizzy" and had trouble standing and walking. Nicole recalled stumbling and "just wanting to sit down." She blacked out again while walking. She remembered waking up the next morning around 7:00 a.m. in the backseat of a car she did not recognize in front of an In-N-Out Burger restaurant. The bag Nicole had taken to the park was missing. She climbed out of the car and started walking home. Her body was aching. When she got home, she noticed she had dirt and leaves in her hair and all over her body.
At trial, the owner of the car Nicole woke up in testified he had left the car at a mechanic's shop near the In-N-Out Burger to be fixed because it would not start. He was contacted the day after dropping it off by the Visalia Police Department about an incident involving the car. He denied being in or around the car after leaving it with the mechanic the day before the incident.
At trial, Jack testified he and Nicole left the park when it was dark outside. They barely made it around the corner when Nicole laid down on the ground. Jack laid down next to her and they talked for about an hour. Then he made Nicole get up and they continued to walk; Nicole kept drinking while they walked. Nicole threw up and started "tumbling." Jack tried to pick up Nicole and carry her, but she would not get up. Nicole and Jack then saw defendant on a bicycle; Jack did not know defendant at the time. Defendant saw Jack was struggling, and he offered to help. According to Jack, defendant appeared to be a methamphetamine user and seemed to be under the influence. Jack estimated defendant was there for an hour or two before they split up. During that time, Jack sat with Nicole while she laid on the ground after throwing up. Jack told her he was going to leave if she did not get up, and Nicole started arguing with him. Jack reported to police Nicole then got up and hugged defendant saying, "'I'm with him'"; Jack thought she knew defendant. Nicole then said she was going to leave; she got up and walked away, stumbling a bit. It was around 9:00 p.m. when Nicole walked away. At trial, Jack testified he left then too, and defendant followed him. Jack told defendant he did not know what to do with Nicole, and defendant said "she'll make it home." Jack bought some drugs from defendant and then separated from him. He did not see Nicole for the rest of the night. According to Jack, Nicole had her bag with her when he last saw her and she had no injuries.
The next morning, Nicole contacted Jack, her sister, and the friends she was with the night before. After speaking to them, Nicole became worried someone had taken advantage of her. She took a shower and noticed "tons of bruises" and she was bleeding from her vagina. When she got out of the shower, she told her mother she thought they should go to the doctor because she believed something might have happened to her the night before. They went to an urgent care center where a sexual assault response team (SART) exam was performed.
Licensed registered nurse Heather McCoy conducted the sexual assault exam. She noted Nicole's wrists were bruised; Nicole had abrasions on her left and right legs; and she had abrasions and redness in her vagina. McCoy collected evidence swabs and took photographs. She testified the abrasions to Nicole's vagina were consistent with forcible penetration. Nicole still had leaves and dirt in her hair even after showering. Her arms and legs were bruised and scratched. She felt pain in her pelvic area. Nicole did not know defendant and did not recall ever meeting him.
Detective Jacob Sorenson was dispatched to the urgent care location regarding a possible rape investigation. During Detective Sorenson's investigation, defendant became a suspect. Sorenson interviewed Jack as part of his investigation. Jack reported to Sorenson defendant said he would take Nicole home that night, and Nicole then left with defendant. Sorenson contacted defendant, and defendant agreed to speak to him.
Defendant told Sorenson he saw Jack on the street that night with his girlfriend lying down next to him. Defendant asked if she was okay and said he was going to call an ambulance. He and Jack then sat and smoked marijuana together. According to defendant, Nicole was "coherent," "kinda talking," "she knew ... what was going on." Defendant then left Jack and the girl there after about 30 minutes; he denied leaving with the girl. He also denied having sexual intercourse with the girl who was with Jack that night and stated there was no reason for his DNA to be inside her or inside the car where she woke up.
Sorenson then contacted Jack and Nicole and showed them photographic lineups that included defendant. Jack was unable to identify anyone but gave Sorenson another description. Nicole was also unable to identify anyone because of her lack of memory. Based on an investigative lead from the Department of Justice, Sorenson arrested defendant and obtained a DNA sample from him. He submitted that sample and a sample taken from Jack to the Department of Justice. Sorenson later received the results of the DNA testing.
Defendant's DNA sample was consistent with that of the minor male contributor to the sperm fraction of a vaginal swab taken from Nicole during the SART examination. Accordingly, defendant could not be eliminated as a contributor. The possibility of someone random having the same DNA profile as seen in the vaginal swab was approximately one in 3.6 quintillion African-Americans, one in 140 quintillion Caucasians, and one in 3.3 quintillion Hispanics.
Megan V. testified regarding a prior incident when defendant sexually assaulted her in 2013. She was 17 or 18 years old then and dated defendant for a few weeks. On February 2, 2013, she was lying down with him and he started to touch her and take off her clothes. She told him "no," but he continued. Megan kept telling him no; defendant punched her in the face four to five times. She tried to scream, but defendant covered her mouth. He pulled off her underwear and inserted his penis in her vagina twice. She kicked him in the chest and managed to crawl and then run away; she was nude from the waist down. She waved down a taxi that took her to a gas station where she called the police. She was given a sexual assault examination and she reported to the examiner and the police what happened that night. Her face was swollen from being punched and she had scrapes on her arms and legs from crawling away. She identified defendant at trial as the person who assaulted her.
The jury convicted defendant of rape of an intoxicated person (§ 261, subd. (a)(3)) and rape of an unconscious person (§ 261, subd. (a)(4)), and the court found true multiple enhancements, including eight prior prison term enhancements. The court sentenced defendant to 44 years to life imprisonment.
DISCUSSION
I. The Court Did Not Prejudicially Err in Denying Defendant's Request for a Continuance to Allow Him to Retain Counsel
Defendant first argues the court reversibly erred in denying his request for a continuance to permit him to retain counsel made a week before trial.
A. Relevant Procedural History
The court's minute orders reflect defendant was arraigned on December 11, 2017. The matter was then set for a preliminary hearing setting on January 12, 2018, but that setting was continued by counsel for defendant. A preliminary hearing setting was also continued by counsel for defendant on February 13, 2018, and March 6, 2018. A preliminary hearing was then set and proceeded on April 11, 2018.
The court initially scheduled a jury trial setting for May 25, 2018. For reasons undisclosed by the record, trial did not proceed at that time. At the end of July 2018, defense counsel moved for a continuance based on his lack of time to investigate and research all the potential issues and defenses in the case because he had been working on a capital case. The parties reconvened in court on August 3, 2018. At that hearing, the court noted defendant's trial was scheduled for the following Tuesday "on a no-time waiver." Defense counsel asked the court to reset the trial about 90 days later and explained defendant agreed with the request and had asked him to do various things in preparation for trial. The People did not object to the request for a continuance and the court granted the motion. Defendant waived time and the court reset the trial to November 13, 2018.
The parties reconvened in court on November 6, 2018, to address the motions in limine. The court also held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to address defendant's request to discharge his lawyer. Defendant asserted his counsel was not consulting with him and defendant was "oblivious to what is happening here." Defendant reported he requested the toxicology reports and updates generally but received nothing. He stated he was trying to clarify the strike allegations and he spoke to his counsel regarding a prior conviction that was reversed, but he did not feel he was being heard. Defendant expressed he did not believe he would receive a fair trial with his assigned counsel's representation.
Defense counsel responded he would be filing a motion to strike defendant's prior strike convictions as defendant requested but, based on the circumstances of the prior charges, he believed it was unlikely to be granted. He also explained why he did not seek certain evidence, such as the lack of defendant's fingerprints on the car and noted there had been no plea offers by the district attorney's office.
The court concluded it did not believe there was a sufficient breakdown in the relationship to merit removal of defense counsel. Accordingly, it denied the Marsden motion.
Immediately thereafter and before the hearing concluded, defendant said, "[J]ust one last thing. Is it possible .... I would like to hire an attorney. No offense. I've spoke to him about it. Can I please have some time for that?" The court responded, "No. You're going to trial Tuesday."
B. Standard of Review
A continuance may only be granted for good cause, and trial courts have broad discretion to determine whether good cause exists. (§ 1050, subd. (e); People v. Alexander (2010) 49 Cal.4th 846, 934.) We review an order denying a motion to continue for an abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1118.)
Defendant bears the burden of establishing an abuse of judicial discretion in the denial of his request for a continuance to secure new counsel. (People v. Jeffers (1987) 188 Cal.App.3d 840, 850; People v. Rhines (1982) 131 Cal.App.3d 498, 506; accord, People v. Beames (2007) 40 Cal.4th 907, 920.) "Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (People v. Beames, supra, at p. 920.) In determining whether the denial was so arbitrary as to violate due process, we look to the circumstances of each case, particularly the reasons presented to the court at the time the request was denied. (People v. Courts (1985) 37 Cal.3d 784, 791 (Courts); People v. Jeffers, supra, at p. 850.)
C. Applicable Law
"The right to the effective assistance of counsel 'encompasses the right to retain counsel of one's own choosing. [Citations.]' [Citation.] Underlying this right is the premise that 'chosen representation is the preferred representation. Defendant's confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.' [Citation.]" (Courts, supra, 37 Cal.3d at p. 789.) "'[T]he state should keep to a necessary minimum its interference with the individual's desire to defend himself in whatever manner he deems best, using any legitimate means within his resources.'" (Courts, supra, at p. 790; see People v. Crovedi (1966) 65 Cal.2d 199, 208.) And the right to counsel of one's choosing "'can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.'" (Courts, supra, at p. 790; see People v. Crovedi, supra, at p. 208.)
"'A necessary corollary [of the right to appear and defend with counsel of his own choosing] is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth. [Citations.]' [Citations.] In addition, counsel, 'once retained, [must be] given a reasonable time in which to prepare the defense.' [Citation.] Failure to respect these rights constitutes a denial of due process. [Citations.]" (Courts, supra, 37 Cal.3d at p. 790.)
While due process secures a defendant's right to appear with retained counsel of choice, this right is not absolute, and the court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is unjustifiably dilatory or arbitrarily desires to substitute counsel at the time of trial. (People v. Leonard (2000) 78 Cal.App.4th 776, 784; People v. Jeffers, supra, 188 Cal.App.3d at p. 850.) A good faith, reasonable effort to retain private counsel must be "sharply contrasted with cases which have upheld the denial of a continuance on the ground that participation by a particular private attorney was still quite speculative at the time the motion for continuance was made." (Courts, supra, 37 Cal.3d at p. 791, fn. 3.)
D. Analysis
Defendant argues the trial court's response to his request for time to retain counsel communicated to him "it would be futile for him to seek to hire an attorney in the week remaining before trial was scheduled to begin," effectively deterring him from seeking new counsel. He asserts the record does not establish permitting him time to retain counsel would have caused "him 'significant prejudice.'" He also argues, regardless of whether the court abused its discretion in refusing his request for additional time, its holding infringed on defendant's rights to counsel of his choice and due process "by preemptively squelching any hope he might have entertained of securing a reasonable continuance in the event he was able to retain counsel prior to the pending trial date." He asserts his expressed dissatisfaction with his attorney during the Marsden hearing was sufficient to justify his request for time to find a replacement. He relies on People v. Stevens (1984) 156 Cal.App.3d 1119 (Stevens) in support of his contentions and asserts per se reversal is required based on the deprivation of his right to counsel. The People respond that defendant was unjustifiably dilatory in seeking to substitute counsel a week before trial, distinguishing Courts, supra, 37 Cal.3d 784. They argue defendant's request for a continuance was not based on good cause. We cannot conclude the court abused its discretion in denying defendant's motion for a continuance made days before trial.
In Courts, supra, 37 Cal.3d 784, the Supreme Court held the trial court abused its discretion in denying the defendant's motion for continuance where the defendant engaged in a good faith, diligent effort to obtain the substitution of counsel before the scheduled trial date. (Id. at pp. 791, 794-796.) The Supreme Court explained the defendant had informed the trial court of his intention to be represented by private counsel weeks before trial was to begin (id. at pp. 791-792) and had successfully retained new counsel a week before trial, rather than at the last minute (id. at p. 794). Thus, "'[there] was neither lack of diligence in seeking a replacement [for appointed counsel] nor undue delay in apprising the court of the situation and seeking [a] continuance.' [Citation.]" (Ibid.) There were also no circumstances warranting a limitation of the defendant's right to counsel based on considerations of judicial efficiency. (Ibid.)
In contrast, here the court was "confronted with the 'uncertainties and contingencies' of an accused who simply wanted a continuance to obtain private counsel." (Courts, supra, 37 Cal.3d at p. 791.) There was no evidence defendant had made any efforts toward retaining counsel or securing funds to do so. (See People v. Pigage (2003) 112 Cal.App.4th 1359, 1367 [no abuse of discretion to deny defendant's request for continuance to seek private counsel after Marsden motion was denied where there was "no evidence defendant attempted to retain counsel, or had even taken steps to secure funds to hire private counsel, although his problems with appointed counsel apparently began" over a week earlier].) Thus, defendant's continuance request was premised on his "representation that he would eventually be able to hire counsel of his own choosing." (Courts, supra, at p. 791, fn. 3.) Additionally, the court had no information regarding when defendant would actually obtain counsel and how long before that person would be able to proceed with trial. (See § 1050, subd. (i) [continuances granted only for period of time evidence shows is necessary].) Notably, the court had granted appointed counsel 90 additional days to prepare for the trial; thus, a similarly lengthy continuance could be reasonably expected once retained counsel had actually been secured. Defendant also did not explain why he had not begun such efforts before that time, given that his dissatisfaction with his counsel had clearly arisen at an earlier point. Nor has defendant established he was prejudiced by the denial of the request for a continuance; that is, there is no evidence he would have been able to afford and retain counsel if a continuance had been granted. (See People v. Fudge (1994) 7 Cal.4th 1075, 1105 [absent a showing of an abuse of discretion or prejudice to the defendant, "'"a denial of his motion for a continuance cannot result in a reversal of a judgment of conviction"'"].) On this record, we cannot conclude defendant has met his burden of establishing the trial court abused its broad discretion when it declined to continue the trial date. (Courts, supra, 37 Cal.3d at pp. 790-791; People v. Jeffers, supra, 188 Cal.App.3d at pp. 850-851 [request for continuance made on day of trial properly denied where defendant failed to present trial court with "compelling circumstances" justifying request].)
Stevens, supra, 156 Cal.App.3d 1119, upon which defendant relies in support of his argument, does not persuade us otherwise. In Stevens, the court held "a defendant's interest in discharging a retained attorney is included within the right to counsel of one's choice, and is subject to the same limitations." (Id. at p. 1127, italics added.) Accordingly, the Stevens court concluded the trial court erred in employing a Marsden analysis in denying the defendant's request to discharge his retained counsel, a brother-in-law who had volunteered to represent him for free. (Id. at pp. 1126-1127.) Because counsel was not court appointed, the defendant could discharge him without cause. (Id. at pp. 1127-1128.) In addition, because the defendant was indigent, the court could not deny him appointed counsel upon request. (Id. at p. 1127.) Thus, the appellate court held it was error to deny the defendant's request for a continuance to be represented by the public defender a week before trial, noting the trial court had an "absolute duty to appoint counsel if [the defendant] was unrepresented." (Stevens, supra, at pp. 1121, 1126-1127.)
Unlike in Stevens, here defendant did not have the same right to discharge appointed counsel, who the trial court concluded was providing adequate representation—a decision defendant does not challenge on appeal. (People v. Ortiz (1990) 51 Cal.3d 975, 983-984 [in contrast to cases involving appointed counsel, a criminal defendant generally has the right to discharge retained counsel "with or without cause"].) Thus, the court was not presented with a situation where defendant would be unrepresented if the court did not permit him a continuance to obtain new counsel. And here, unlike in Stevens where the defendant was seeking appointed counsel, if and when defendant could actually find and retain counsel was entirely speculative when he requested the continuance. Thus, Stevens is inapposite.
Rather, finding no abuse of discretion, we reject defendant's contention.
II. Evidence Was Sufficient to Establish Knowledge Element of Crimes
Defendant next asserts the evidence was insufficient to establish the requisite knowledge element of the crimes. We disagree.
A. Standard of Review
On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) The reviewing court's task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Johnson (1980) 26 Cal.3d 557, 578.)
We "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis ... is there sufficient substantial evidence to support"' the jury's verdict." (Ibid.)
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts." (People v. Young (2005) 34 Cal.4th 1149, 1181.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (Ibid.)
"'"'[A]lthough an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.'"'" (People v. Dalton (2019) 7 Cal.5th 166, 209.)
B. Applicable Law
Rape of an intoxicated person is defined as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator ... [¶] ... [¶] [w]here a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused." (§ 261, subd. (a)(3).) Accordingly, to be convicted of rape of an intoxicated person, the perpetrator must have known or reasonably should have known of the victim's condition that precluded consent. (People v. Linwood (2003) 105 Cal.App.4th 59, 71.)
Rape of an unconscious person is defined as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator ... [¶] ... [¶] [w]here a person is at the time unconscious of the nature of the act, and this is known to the accused." (§ 261, subd. (a)(4).) Accordingly, to commit rape of an unconscious person the perpetrator must know the victim is unconscious and the perpetrator must have the intent to have sexual intercourse with that person. (People v. Dancy (2002) 102 Cal.App.4th 21, 37.) The mental state requirement precludes conviction without proof that the perpetrator knew of the victim's unconsciousness. (Id. at p. 36.)
C. Analysis
Defendant asserts there was not substantial evidence from which reasonable jurors could infer "(1) that Nicole was either unconscious or too intoxicated 'to exercis[e] the judgment required to decide whether to consent to intercourse' at the time she and [defendant] engaged in sexual relations ...; or (2) that [defendant] both knew that Nicole was unconscious or too intoxicated to be capable of consenting and nevertheless acted with the wrongful intent of engaging in an act of sexual intercourse with her." (Fn. omitted.) He asserts a reasonable trier of fact could not infer beyond a reasonable doubt that Nicole was incapacitated when the act of penetration occurred or that defendant knew or reasonably should have known of her condition at that time. We disagree with defendant's contentions.
For a defendant to be convicted of a violation of section 261, subdivision (a)(3) the victim's level of intoxication must "be such that the victim is incapable of exercising the judgment required to decide whether to consent to intercourse." (People v. Giardino (2000) 82 Cal.App.4th 454, 464; accord, People v. Lujano (2017) 15 Cal.App.5th 187, 193.) Additionally, "[i]t is settled that a victim need not be totally and physically unconscious in order for [section 261, subdivision (a)(4),] defining rape as an act of sexual intercourse accomplished with a person who is at the time 'unconscious of the nature of the act[,]' to apply." (People v. Ogunmala (1987) 193 Cal.App.3d 274, 279.) Rather, section 261, subdivision (a)(4) uses the phrase "unconscious of the nature of the act" to mean "incapable of resisting because the victim [¶] ... [w]as unconscious or asleep ... [¶] [or w]as not aware, knowing, or cognizant that the act occurred." "One who is unconscious as defined in section 261, subdivision (a)(4), necessarily does not act freely and voluntarily with knowledge of the nature of the act." (People v. Morales (2013) 212 Cal.App.4th 583, 591.)
Here, substantial evidence supports the jury's conclusion defendant raped Nicole, who was "prevented from resisting" by an intoxicating substance and "unconscious of the nature of the act" as those phrases are used in section 261, subdivisions (a)(3) and (4). There was also sufficient evidence from which the jury could infer defendant knew of Nicole's condition when he engaged in sexual intercourse with her. Nicole testified she recalled being intoxicated, unable to walk straight, and stumbling the night of the rape. She lacked memory of most of the night after she left the park and denied awareness of the fact she and defendant had sex that night or the following day. She further testified she repeatedly "blacked out." Jack also testified Nicole kept lying down on the way home; she would not stand up to walk, she vomited, and she was stumbling. Additionally, defendant himself told police he saw Jack with a girl (Nicole) who was "laid out" and that defendant was going to call an ambulance after seeing her. He asked Jack, "[W]hat's up with her?" and if she was alright. Defendant explained he witnessed Jack trying to get her up. There was also evidence Nicole was bruised and scraped in the morning with leaves and dirt in her hair, and her vaginal examination reflected abrasions consistent with forcible penetration.
Such evidence and the reasonable inferences the jury could draw therefrom supports the jury's finding Nicole was incapable of resisting intercourse due to intoxication and lacked the requisite consciousness to consent when defendant had sex with her. (See generally People v. Ramirez (2006) 143 Cal.App.4th 1512, 1531, fn. 9 [noting victim's testimony she lost consciousness was sufficient evidence to support conclusion she was unconscious during at least some portion of rape].) It also supports the jury's inference defendant knew Nicole lacked sufficient consciousness or awareness to consent to intercourse, and he knew or should have known her level of intoxication prevented her from resisting intercourse. (See People v. Hernandez (2011) 200 Cal.App.4th 1000, 1005 [substantial evidence, including victim's testimony she was intoxicated, had no memory of assault, and never consented to sex with defendant paired with defendant's statements, supported inferences drawn by jury that victim was unconscious and defendant knew it]; see generally People v. Wader (1993) 5 Cal.4th 610, 640 ["We draw all reasonable inferences in support of the judgment"].)
Defendant argues People v. Rogers (2006) 39 Cal.4th 826 (Rogers) stands for the proposition that Nicole's lack of memory was insufficient to support an inference she was unconscious when the rape occurred. We conclude Rogers is inapplicable. In Rogers, the California Supreme Court held the trial court in a capital homicide prosecution was not required to instruct, sua sponte, on the defense of unconsciousness where no expert testified the defendant was unconscious during either of two killings, and defendant's professed inability to recall the events, standing alone, was insufficient to warrant an unconsciousness instruction. (Id. at pp. 887-888.)
Unlike in Rogers, here the concept of unconsciousness related to Nicole's capacity to resist intercourse. And other evidence, in addition to Nicole's stated lack of memory, including evidence of her intoxication, supported a reasonable inference by the jury that she was intoxicated and unconscious within the meaning of section 261, subdivision (a)(3) and (4). Thus, Rogers is inapposite.
In so concluding, we reject defendant's contention it was not reasonable for the jury to infer Nicole's state of mind when defendant had intercourse with her because there was only evidence of her condition and defendant's impression of her when defendant initially met her. To the contrary, the totality of the evidence, and the reasonable inferences which could be drawn from it, amply supported the jury's verdict.
In support of his argument he was not aware of Nicole's intoxication or unconsciousness, defendant highlights other evidence, including his statement to police in which he denied the girl he saw with Jack was drunk, high on drugs, or otherwise overly intoxicated and stated instead that "she was coherent ... she knew what was going on." We note, however, "'[w]e do not reweigh evidence or reevaluate a witness's credibility.'" (People v. Scott (2011) 52 Cal.4th 452, 487; accord, People v. Hernandez, supra, 200 Cal.App.4th at p. 1005 [declining invitation to reweigh evidence that victim was unconscious when defendant had sex with her].) Rather, we view the evidence in the light most favorable to the judgment and, accordingly, conclude the evidence supports defendant's convictions.
III. Defendant Was Not Prejudiced by Instruction Regarding Mistake or Accident, and Evidence of Prior Sexual Misconduct Was Properly Admitted
Defendant next argues the trial court prejudicially erred in instructing the jury it could consider evidence of his prior sexual assault to negate accident or mistake. He also argues the court erred to the extent it admitted evidence of his prior sexual assault for this purpose.
A. Procedural History
Before trial, the prosecutor moved to introduce evidence of a 2013 sexual assault by defendant. The prosecutor noted such evidence was relevant to common scheme or plan, lack of consent, and intent, and pursuant to Evidence Code section 1108, subdivision (d). Defense counsel conceded such evidence was admissible pursuant to Evidence Code section 1108. However, he argued with regard to lack of consent, "unless the witness [of the prior assault] is going to testify on the stand as to the lack of consent, it is convicted as a 261.5 charge, which is implicitly a consent crime." The prosecutor noted "there will be testimony by the victim of the prior offense regarding the lack of consent." The prosecutor further noted a minor could not consent to sexual intercourse.
The court concluded such evidence was not more prejudicial than probative under Evidence Code section 352. It stated the prior offense was "highly relevant" and "the probative [value] is significant." It also stated it would allow evidence of the offense under Evidence Code section 1101, subdivision (b) as evidence of a common plan or scheme. It further pointed out the offense was not remote in time in that it occurred in 2013. Accordingly, the court held evidence of defendant's prior sexual assault to be admissible.
After the presentation of evidence, the court instructed the jury, in part, regarding consideration of this other offense evidence:
"The People presented evidence that the defendant committed another offense that was not charged in this case. You may consider this evidence only if the People have proved by preponderance of the evidence that the defendant, in fact, committed the offense.
"Proof by a preponderance of the evidence is a different burden than 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, you must disregard this evidence entirely.
"If you decide that the defendant committed the offense, you may, but are not required, to consider that evidence for the limited purpose of deciding whether the defendant's alleged actions were not the result of mistake or accident or the defendant had a plan or scheme to commit the offense charged in this case.
"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense. Do not consider this evidence for any other purpose unless I instruct you otherwise. Do not conclude from this evidence that the defendant had a bad character or is disposed to commit crime.
"If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor in considering [sic] along with all the other evidence. It's not sufficient by itself to prove that the defendant is guilty of the charged offenses.
"The People must still prove every charge beyond a reasonable doubt." (Italics added.)
B. Standard of Review and Applicable Law—Instructional Error
We review de novo the legal adequacy of an instruction. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Cole (2004) 33 Cal.4th 1158, 1210.) We must ascertain the relevant law and determine whether the given instruction correctly stated it. (People v. Kelly (1992) 1 Cal.4th 495, 525-526.) "The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681.)
Error of the type alleged here, i.e., giving a jury instruction which, while correctly stating the law, has no application to the case, "does not appear to be of federal constitutional dimension." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) "The error is therefore one of state law subject to the traditional Watson test (People v. Watson (1956) 46 Cal.2d 818, 836) applicable to such error. [Citation.] Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred." (People v. Guiton, supra, at p. 1130.)
C. Standard of Review and Applicable Law—Admission of Evidence of Prior Sexual Misconduct
Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. (Evid. Code, § 1101, subd. (a).) However, such evidence may be admissible to prove a fact other than a defendant's disposition to commit such an act (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). (Id., subd. (b).) The Legislature has also created exceptions to the rule barring propensity evidence in cases involving sexual offenses (id., § 1108) and domestic violence (id., § 1109).
Evidence Code section 1108 provides in a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not inadmissible character evidence under Evidence Code section 1101 if such evidence is not inadmissible pursuant to Evidence Code section 352. (Evid. Code, § 1108.) Section 352 of the Evidence Code affords the trial court discretion to exclude such 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." (Ibid.) "'"'As with other forms of relevant evidence that are not subject to any exclusionary principle, the presumption will be in favor of admission.'" [Citation.]' [Citation.]" (People v. Loy (2011) 52 Cal.4th 46, 62.)
In deciding whether to exclude evidence of another sexual offense under Evidence Code section 1108, "'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. Story (2009) 45 Cal.4th 1282, 1295.) "'[T]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.' [Citation.]" (People v. Loy, supra, 52 Cal.4th at p. 63.)
We review for an abuse of discretion a trial court's rulings on the admissibility of evidence, including those turning on the relevance or probative value of the evidence in question. (See People v. Lee (2011) 51 Cal.4th 620, 643; People v. Hamilton (2009) 45 Cal.4th 863, 930; accord, People v. Robertson (2012) 208 Cal.App.4th 965, 991 ["A challenge to admission of prior sexual misconduct under Evidence Code sections 1108 and 352 is reviewed under the deferential abuse of discretion standard and will be reversed 'only if the court's ruling was "arbitrary, whimsical, or capricious as a matter of law"'"].) "[S]tate law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439.) Federal due process is offended only if admission of the irrelevant evidence renders the trial fundamentally unfair. (Ibid.)
D. Analysis
Defendant asserts the court erred by instructing the jury it could consider evidence of his prior sexual misconduct in deciding whether his actions were the result of mistake or accident. He argues, because consent is not a defense to either of the offenses with which he was charged, the absence of mistake or accident was inapplicable. He contends the instruction misled the jury into convicting him "based on the misplaced belief that [evidence of his prior sexual misconduct] was relevant and probative on the element of knowledge." And to the extent evidence of the prior incident of sexual misconduct was admitted for this purpose, it lacked relevance and probative value. He concedes his counsel did not object to the instruction at trial but notes his counsel questioned the admissibility of the prior offense evidence under Evidence Code section 1101, subdivision (b) for the purpose of proving lack of consent. He argues this objection alerted the court to the potential for prejudice if it instructed the jury it could consider evidence of the prior misconduct on the issue of lack of accident or mistake. Alternatively, he asserts the alleged instructional error affected his substantial rights and we should exercise our discretion in considering it. Even assuming, arguendo, the instructional issue raised by defendant was sufficiently preserved for our review, we conclude the alleged error was harmless.
Defendant does not contend the challenged instruction was legally incorrect. Rather, he asserts it did not apply to the facts of this case. In so arguing, defendant correctly acknowledges mistake as to consent is not a "defense" to the crimes of rape of an unconscious or intoxicated person. (See People v. Dancy, supra, 102 Cal.App.4th at pp. 34-36; People v. Braslaw (2015) 233 Cal.App.4th 1239, 1245.) And he contends the prior incident was not probative of or relevant to the knowledge element in this case because the prior sexual assault did not involve defendant's knowledge of the victim's level of intoxication and/or her ability to consent.
Mistake of fact regarding a victim's level of intoxication and/or her ability to resist or consent may negate the knowledge elements of the crimes of rape of an unconscious or intoxicated person. (See People v. Braslaw, supra, 233 Cal.App.4th at p. 1250; accord, People v. Linwood, supra, 105 Cal.App.4th at p. 71 [a defendant is guilty of rape of an intoxicated person despite a good faith belief in ability to consent so long as he should have known the victim lacked capacity].) In convicting defendant of the charged crimes, the jury necessarily concluded consent and any alleged mistake or accident by defendant regarding whether Nicole consented was not at issue, and it rejected any purported defense defendant had a mistaken belief in Nicole's level of intoxication and her capacity to consent and/or resist intercourse. (See People v. Ramirez, supra, 143 Cal.App.4th at p. 1529 [trial court did not err in refusing to instruct on mistake of fact defense in light of instruction regarding elements of rape of an intoxicated person; "[a] belief that the victim was able to resist could not be reasonable if the perpetrator 'reasonably should have known' that the victim was unable to resist"]; People v. Braslaw, supra, at p. 1246 ["fourth element of the crime of rape of an intoxicated person necessarily addressed the defense of a reasonable mistake of fact as to whether the victim was too intoxicated to consent"].)
The California Supreme Court has noted "'[g]iving an instruction that is correct as to the law but irrelevant or inapplicable is error. [Citation.] Nonetheless, giving an irrelevant or inapplicable instruction is generally '"only a technical error which does not constitute ground for reversal."'" (People v. Cross (2008) 45 Cal.4th 58, 67; accord, People v. Falaniko (2016) 1 Cal.App.5th 1234, 1247; People v. Eulian (2016) 247 Cal.App.4th 1324, 1335.)
And here, we cannot conclude it is reasonably probable a result more favorable to defendant would have been reached absent the instruction that the jury could consider evidence of defendant's prior sexual misconduct in deciding whether his actions were not the result of mistake or accident. As discussed, without considering evidence of the prior sexual misconduct, there was substantial evidence from which the jury could infer defendant knew Nicole lacked sufficient consciousness or awareness to consent to intercourse, and he knew or should have known her level of intoxication prevented her from resisting intercourse. Additionally, there was no evidence defendant mistakenly or accidentally believed Nicole had the capacity to consent or resist intercourse, nor did defendant argue such a defense at trial. And neither party argued defendant's prior sexual misconduct was probative on the issue of whether he knew or should have known of Nicole's condition.
Furthermore, the jury was properly instructed on the elements of each offense and that defendant was not guilty "if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if that belief was wrong." The court also instructed the jury some of the instructions may not apply, based on the jury's findings of the facts of the case. On this record, we presume the jury followed the instructions and disregarded the inapplicable portion of the challenged instruction. (See People v. Sanchez (2001) 26 Cal.4th 834, 852 ["Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions"].) We also cannot conclude, as defendant contends, that the referenced instruction misled the jury to consider evidence of the prior sexual assault for an improper purpose that affected its verdict.
Additionally, to the extent defendant challenges the admissibility of evidence of his prior sexual misconduct to prove absence of accident or mistake, we again conclude any alleged error was harmless. As discussed, such evidence was relevant and admissible pursuant to Evidence Code section 1108. Indeed, defense counsel conceded such evidence was admissible pursuant to Evidence Code section 1108. The trial court also concluded such evidence was admissible pursuant to Evidence Code section 1101, subdivision (b) to prove common scheme or plan and knowledge, a decision defendant does not challenge on appeal. Thus, any alleged error in admitting such evidence to prove defendant's conduct was not a result of accident or mistake was harmless because it was properly admitted for other purposes.
We reject defendant's contention.
IV. Enhancements for Defendant's Prior Prison Terms Must Be Stricken
In supplemental briefing, defendant contends his eight 1-year prior prison term enhancements imposed pursuant to section 667.5, former subdivision (b) must be stricken in light of Senate Bill 136 (Stats. 2019, ch. 590, § 1), which was signed into law on October 8, 2019, and became effective on January 1, 2020. The People concede Senate Bill 136 applies retroactively to this case and agrees the enhancements should be stricken. (See In re Estrada (1965) 63 Cal.2d 740, 742.) We agree with defendant and, accordingly, accept the People's concession.
At the time defendant was charged, convicted, and sentenced, section 667.5, former subdivision (b), provided in part:
"[W]here the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony ...."
After defendant was sentenced, but while his case was still pending on appeal, the Legislature enacted Senate Bill 136. Effective January 1, 2020, section 667.5, subdivision (b) now provides in pertinent part:
"[W]here the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code ...."In other words, a prior prison term enhancement will only apply if a defendant served the prior prison term for a qualifying "sexually violent offense." The Legislature did not expressly declare or in any way indicate it did not intend Senate Bill 136 to apply retroactively. "When an amendatory statute ... lessens the punishment for a crime ..., it is reasonable for courts to infer, absent evidence to the contrary and as a matter of statutory construction, that the Legislature intended the amendatory statute to retroactively apply to the fullest extent constitutionally permissible—that is, to all cases not final when the statute becomes effective. [Citations.]" (People v. Garcia (2018) 28 Cal.App.5th 961, 972.)
We conclude Senate Bill 136 applies retroactively to this case and, because defendant's prior prison terms were not served for sexually violent offenses, the related enhancement imposed pursuant to section 667.5, former subdivision (b) are now unauthorized and must be stricken.
DISPOSITION
The judgment is modified to strike the prior prison term enhancement allegations found true under section 667.5, former subdivision (b). As so modified, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
PEÑA, J. WE CONCUR: LEVY, Acting P.J. FRANSON, J.