Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside CountySuper.Ct.No. RIF116457, Robert George Spitzer, Judge. Affirmed in part, reversed in part with directions.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, Robin Derman and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Appellant.
RAMIREZ, P.J.
A jury convicted defendant of inflicting corporal injury on his wife (Pen. Code, § 273.5, subd. (a)), during which he used a firearm (§ 12022.5, subd. (a)(1)), and kidnapping for rape or oral copulation (§ 209, subd. (b)(1)), assault with intent to commit rape (§ 220), forcible rape (§ 261, subd. (a)(2)), forcible penetration with a foreign object (§ 289, subd. (a)(1)), and incest (§ 285, subd. (a)(1)), all involving his number two daughter. After the trial court reduced his conviction of aggravated kidnapping to simple kidnapping, defendant was sentenced to prison for 32 years and appeals, claiming evidence was erroneously admitted, the jury was misinstructed and sentencing error occurred. We reject his first two contentions and affirm his convictions. The People contend that the trial court abused its discretion in reducing defendant’s aggravated kidnapping conviction to simple kidnapping. We agree and reverse the trial court’s order. We therefore remand the matter for resentencing.
All further stutory references are to the Penal Code, unless otherwise indicated.
The facts concerning defendant’s infliction of corporal injury on his wife are not pertinent to this appeal and will not be discussed.
Defendant’s number two daughter, who was 18 at the time of the crimes involving her, testified that on the night of April 21, 2004, she agreed to go with defendant in his truck to watch her brother perform with his band at a bar. She knew her father had been drinking and was concerned about him driving home drunk should he also drink at the bar. Defendant did exactly as she anticipated. In addition, he was loud, rowdy and obnoxious. However, nothing strange happened between them. Based on previous experiences, she knew that if defendant had been having a bad day or something stressful had occurred, he would get angry and become verbally and physically abusive when under the influence. When they left the bar at about 11:00 p.m., she wanted defendant to accept her brother’s offer to take them home, but defendant said no. As she left her brother, she put her hands together, as though in prayer and said “Pray for me” to her brother.
Defendant’s wife testified he was drunk when he left their house.
He told one of the band members who had a crush on her not to “bother” because she was a lesbian.
Defendant was “very drunk” and had tripped over a curb on his way to his truck. She was not sure if he tripped because of his intoxication or because he did not see the curb.
On the way home, defendant kept taking wrong turns, saying he was lost and ignoring his daughter’s advice to go the right way. This frustrated, angered and scared her because they were in an area with which her father was familiar due to his employment. She believed defendant was “just kind of messing with her.” He told her she had “the nicest tits he had ever seen[,]” which is something he had never said to her before. He asked her if she had had sex. She told him it was inappropriate for him to ask her that. A few minutes later, he asked her again. Every time she told him to turn down and street, he turned in the opposite direction, saying, “Was I supposed to go this way?” and grabbed her breast. She pushed his hand away and moved closer to the door. Defendant was driving in circles and went down the same street several times. She became concerned that something was going to happen to her.
He asked her five or six times if she had ever “given head” before. She told him that was inappropriate and none of his business. On several occasions, he parked the truck on different side streets and turned off the lights, then began repeating his questions or reaching over and trying to grab her. Several times, he said, “We’re going to do this.” Because he said this right after asking her if she had engaged in oral sex, she believed he was trying to get her to orally copulate him and she was frightened, thinking that something might actually occur then. At one point, she said, “What?” and he responded, “You know.” She countered that they needed to get home. Despite his intoxication, he spoke coherently and said nothing that indicated he was out of touch with reality or did not know where he was.
She said his speech was not slurred.
He pulled into a train station that was a few blocks from their home. She urged him to drive on so the security guard would not see him drunk. He began asking her the questions and trying to grab her. A security guard or railroad employee approached the truck and knocked on the window. Defendant rolled it down and told him that they were leaving. She did not try to get out of the truck because she was afraid. At one point, defendant thought she was going to try to jump out and he reached over, grabbed her sleeve and said, “Don’t try to get out[,]” which she took as a threat.
After leaving the train station, defendant drove to an elementary school, which was a block or two from their home, and pulled into a dark secluded walled field behind it. Defendant turned off the car lights. He again asked her about oral sex and repeated, “We’re going to do this.” She was afraid and cried, telling him she wanted to go home. He moved the truck to the other side of the street, pulled up to the curb, turned off the lights and again asked her about oral sex. “He reached over and grabbed [her], and then he passed out.” Up to this point, he seemed to know what he was doing to her. She feared that he was faking unconsciousness to see if she would try to escape, so she waited 10 minutes. It was then between midnight and 1:00 a.m. She was afraid if she got out of the truck and shut the door, she would wake him and that would make him angry and he would come after her. Additionally, she did not want to leave him out there by himself. So, she nudged him and told him to wake up. He seemed a little groggy and “out of it” like he wasn’t sure what was going on. He asked where they were. She told him they were going home and he should move over to the passenger seat, while she got into the driver’s seat. He agreed. Even though she had no license and had never before driven the truck, she drove home.
Defendant made three other stops, during one of which he also turned off the lights. He made inappropriate comments during all of the stops.
Defendant acted like he had forgotten what had been going on. As they approached their street, around 1:00 a.m. or 1:30 a.m., he grabbed the wheel and scooted next to her, pushing her against the door, and pushed the gas pedal. He looked panicked. When she tried more than once to get out, he pushed her away from the door and put his foot on the gas while she kept hers on the brake. As they approached their home, she saw the garage door go up and her mother walk towards the truck. She opened her door and told her mother to put on the emergency break. Defendant then took his foot off the gas and she got out of the truck and ran into the house.
She did not tell her mother what had happened because her father was there. She was scared, but felt safe because her mother was with her father and she did not believe he would do anything to her sexually with her mother in the house. Defendant appeared to be angry. Her mother came in her bedroom and asked her what was going on, because she could see that her daughter had been crying. She told her mother that defendant had been acting inappropriately, but she was fine and nothing should be done. She explained that she was afraid if she told her mother what had happened, the latter would leave defendant, which would disrupt the daughter’s employment and schooling and her siblings’ lives, and the mother would eventually take him back anyway, as she had in the past. She waited until she was sure her father was asleep before going to sleep herself.
The mother testified that she also told her that defendant had tried to put his hands on her and he wouldn’t let her go home.
The next morning, she got up, while her father slept, even though it was a workday for him. Before leaving for her place of employment, her mother instructed her to call her when the daughter got on the bus to go to work. The daughter was concerned about being in the house alone with defendant and she asked her mother to drop her off, but the mother was running late and was unable to do so. The mother assured her that defendant would remain asleep and everything would be fine.
Her siblings had already been taken to school.
As she was getting ready for work, defendant stood in her doorway, wearing a pair of boxers. He backed her into her bedroom. It appeared as though he had just woken up and he was very angry. He asked her if she had told her mother. He leaned towards her and she fell back onto her bed, hitting her head on the headboard. He got on top of her. She tried to push him off. They struggled. He said, “I want to see them” and he lifted up her t-shirt and bra, as she struggled to keep them in place. She told him to stop and get off her. She cried and screamed. He kissed and put hickeys on her left breast. She pushed and punched him, but the larger defendant held her down. She began to have an asthma attack. He told her to be quiet. She struggled so hard, both fell off her bed. She told him she couldn’t breathe. He put his hand over her mouth and told her to be quiet. He told her if she didn’t stop, “this is going to get ugly.” They struggled on the floor for awhile, then defendant got up, grabbed her by the arm and said, “‘Let’s go to the bedroom.’” She was afraid to go because he kept guns in his bedroom and she feared he would use one on her. She had previously seem him hold a gun while he was very angry and when he yelled and screamed at her mother.
She pulled away from him and when they got to the doorframe of her bedroom, she held on to it to stop him from moving her further. She thought she was going to die. As they got to the hall, she broke free and ran for the sliding glass door in the kitchen. However, by the time she unlocked it and opened it a bit, screaming, “‘Help[,]’” defendant was on her, slamming it shut. He threw her across the kitchen and she slammed against the wood table, which slid across the floor. As she tried to crawl to the garage, he got on top of her again and tried to pull her towards the bedroom. He pinned her to the floor and again tried to remove her shirt. He pulled off her shirt, tore her bra and pulled off her sweatpants, breaking the drawstring that was holding them in place. She continued to struggle with him, but her muscles were tired from the fighting and she was weak from impaired breathing. He pulled down his boxer shorts. She opposed his demand to go to the bedroom. At one point while they were in the kitchen, he heard a noise and thought someone might be at the front door. He looked around the corner, but realized that the cat had made the noise.
He grabbed her by the arm and tried to take her back down the hall, but she put her hands and feet out. He dragged her to the living room. She was no longer able to fight him. He had her get on the floor. He got on top of her and began touching her breasts and genitals. As he held her down, he inserted his fingers into her vagina. He then raped her, as she continued to try to get away from him. He told her to be quiet, as she was screaming. He told her “to put out” so he could finish sooner.
The phone rang. It was her mother. He told her mother that she was at work and he had just gotten up. She was too afraid to do anything. She later discovered that her mother had called her cell phone during this time. After the call, defendant got back on top of her and resumed raping her and doing things to her breasts. He began kissing her body, going down from her breasts to her stomach and then to her hips. He noticed a piercing she had in the area and commented on it. She screamed “No” and he stopped. She began to pray out loud. He became angry and told her to shut up. He ejaculated inside her and on her stomach. He told her to get up and clean herself. He also told her to call work and tell them she would not be in and to tell her mother that she had missed the bus.
She called her work and her mother, saying nothing about the attack, out of fear. She thought about running out of the house, but was afraid he would come after her. She washed her hair to make it appear as though she had taken a shower, but she wiped her stomach and vagina with a washcloth, which she hid in the cabinet under a stack of clean towels. Defendant asked her if she had showered and called her work and her mother. He acted as though nothing had happened. He told her if she told anyone what happened, they would lose their house, the family would dissolve and they’d live on the streets, all of which would be her fault. She believed him. However, she decided to tell her mom, so she text messaged her, saying, “‘[H]elp. I’m at home. Don’t call.’” When her mom got home 20 minutes later, she told her that defendant had raped her. Her mother told her to call 911, then the mother went into the bedroom she shared with defendant and laid on the bed with him, which she did whenever they were home together during the day. When the police lead the arrested defendant out of his house, he turned to the number two daughter and said, “‘What’s going on?’” Her mother and sister told her that when defendant was arraigned, he mouthed to the mother, “‘I’ll get you[,]’” which increased the number two daughter’s fear of him.
Defendant was also charged with dissuading a witness and making criminal threats, both involving his wife, but was acquitted of those charges by the jury.
Defendant’s adult son testified that defendant was drunk often. The son said, of himself and his siblings, “We knew when [defendant] got home [from work], we just had to keep him happy. That was our main objective every day. [¶] . . . [¶] . . . We knew if we messed up just a little bit, it would . . . [¶] . . . [¶] . . . just put dad on a rampage.” “[W]e did everything we could to avoid that.” He described his father as a “‘functional drunk’” in that he could function while drunk up to the point where he passed out. He said on heavy drinking nights it was common for defendant to drink until he passed out. While defendant and his sister were driving around the early morning of April 22, 2004, the son spoke to defendant by cell phone and noticed that the latter slurred his words. He testified that sometimes defendant drank to excess on a daily basis.
Defendant’s wife testified that defendant and her daughter arrived home two hours after her son called her, following this cell phone conversation.
Defendant’s youngest daughter, who was 16 when the crimes involving her sister occurred, testified that “[t]here are only a few occasions that [she] c[ould] picture [defendant] without a beer in his hands.”
Defendant’s wife testified that he “could drink a lot.” He was able to drink a great deal of beer and appear to be okay. Typically, except for the four or five years defendant abstained from alcohol, he would drink a 24 can/bottle case of beer in the afternoon and a bottle of 1800 tequila. She estimated that defendant spent $120 a week on beer. She testified that when defendant drinks a lot, he makes decisions about what he wants to do and then does it. He was routinely able to drive around town without getting lost and appeared as though he was functioning normally when under the influence of alcohol. When he stopped functioning due to alcohol ingestion, he would lie down and pass out. The night of the crimes involving the number two daughter, defendant pulled his truck into his driveway after the daughter ran from it into the house.
Even defendant’s sister, who testified for the defense, acknowledged that her brother had a problem with alcohol.
The jury heard a tape of defendant’s interview with police on April 22, 2004. He was able to recall inviting his number two daughter to go with him to the bar where his son’s band was playing and when they left, where the bar was located, that they ate and drank, and how much, while there, when they left (and that there was another band that had still not played) and when he went to bed after getting home. He admitting having sex with his daughter the following morning, but claimed that she came on to him and he tried to stop things, but they got out of hand. After initially claiming to have no memory of their trip home the night before, he then “remembered” that his daughter “came on to” him while he was driving home, “grabbing [his] leg” and “reaching over.” Defendant did not testify and introduced no expert testimony about his level of intoxication that night and how it affected his cognitive ability.
Other facts will be disclosed as they are relevant to the issues discussed. Any additional facts boyond these are irrelevant to this appeal.
Issues and Discussion
1. Admission of Evidence of Defendant’s Prior Acts
In a pre-trial written motion, the People sought permission, under Evidence Code section 1101, 1108 and 1109, to introduce evidence concerning past acts by defendant. Specifically, defendant was convicted in 1995 of domestic violence on his wife. Defendant had been concomitantly charged in 1995 with sexually battering his oldest daughter, which charges were dismissed as part of his plea bargain. Defendant had also been arrested in 1993 for discharging a firearm at his wife. There were numerous other incidents during which defendant threatened and/or battered his wife during their marriage. Regarding the instant offenses, defendant admitted to police that he engaged in sexual intercourse with his number two daughter, but claimed it was consensual, and he denied threatening or inflicting corporal injury on his wife. The People’s theory of admissibility of the prior acts of domestic violence and sexual battery is that they (1) showed his propensity to commit the charged crimes involving his wife, (2) showed his intent in threatening his wife, (3) showed that the wife had sustained fear of defendant for purposes of two of the charges involving her, (4) showed his propensity to commit the crimes against the number two daughter, (5) helped explain that daughter’s action before and during the rape of her by defendant and, (6) showed defendant’s intent and motive and a lack of mistake.
Evidence Code section 1101 provides that evidence of prior acts may be admitted to show “some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act . . . did not reasonably and in good faith believe that the victim consented) other than his . . . disposition to commit such an act.” As is pertinent here, Evidence Code sections 1108 and 1109 permit the admission of evidence of other sexual offenses during the trial of a sexual offense and evidence of other acts of domestic violence during the trial of an offense involving domestic violence, respectively.
At the hearing on the motion, the prosecutor stated that this involved a touching of the oldest daughter.
Defendant filed no written opposition to the motion.
During a hearing on the motion, the trial court ruled that evidence of the 1993 and 1995 incidents were admissible “without respect to Evidence Code sections 1101(b), 1108, and 1109, because it deals with the credibility of [defendant’s wife and children].” The court went on to say, “[T]heir feelings, either their enmity toward or their affection toward . . . defendant are relevant on the issue of their credibility, and the nature of the relationship that . . . gave birth to those feelings helps the jury determine their credibility.” The trial court also ruled that evidence of the 1995 sexual battery on the oldest daughter was relevant to show an absence of mistake as to the crimes involving the number two daughter “if that appears to be the defense in this case.” The court reserved ruling on whether the evidence was admissible under 1108 as propensity evidence.
At that point, defense counsel said that prior sexual battery evidence was “prejudicial no matter what kind of charge [defendant] is facing. Because it’s sufficiently distasteful, I believe that it will turn the jury more against him than they already are.” However, counsel’s “biggest complaint” with the evidence was that he had not received the advanced notice required by Evidence Code section 1108. The prosecutor responded that he thought defense counsel had known for some time that the 1995 incident involved sexual battery with the oldest daughter. Defense counsel responded that he was aware only that defendant had been convicted of corporal injury to his wife in 1995. The trial court repeated that it was reserving ruling on admitting the evidence under Evidence Code section 1108. Defense counsel then stated that although the 1993 domestic violence incident was outside the 10 year limit imposed by Evidence Code section 1109, he was objecting to the section 1101, 1108 and 1109 evidence “primarily” on the basis of late discovery. After the number two daughter testified that defendant was violent towards her, her mother and her siblings, about the victimization of her mother and sister during the 1995 incident, and about an incident involving defendant during her senior year in high school, defense counsel noted for the record that he was reiterating his prior objection “based upon what we discussed yesterday, the late discovery, et cetera . . . ” The prosecutor pointed out that in a supplemental report by the case agent, the sexual battery of the oldest daughter and the 1993 and 1995 domestic violence incidents are mentioned. Defense counsel did not dispute this.
That section requires that if evidence is offered under that section, the People must disclose it to the defense at least 30 days prior to trial unless good cause is shown. (Evid. Code, § 1108(b), Pen. Code, § 1054.7.) Defense counsel had been given the police reports pertaining to the 1993 and 1995 domestic violence incidents and the 1995 sex crime involving defendant’s oldest daughter the day before jury selection began.
He also mentioned that the 1993 incident was more than 10 years old, which, under Evidence Code section 1109, made it presumptively inadmissible as being too remote in time.
The prosecutor noted that he anticipated defendant’s wife testifying that “depending on . . . defendant’s mood and level of consumption [of alcohol] and how that was affecting him, he would, on a fairly regular basis, assault her” during their 24-year-marriage. He also anticipated defendant’s son testifying that defendant slapped and punched him when he was 14 or 15 years old. It thus appeared that the trial court was ruling that this evidence was also admissible.
Still later, the trial court ruled that evidence that defendant had been convicted of domestic violence as a result of the 1995 incident was admissible, based on defense counsel’s concession that the two character witnesses he planned to call could be cross-examined about it.
During the number two daughter’s testimony, she said that defendant hit her mother, herself and her two older siblings and was verbally abusive towards her mother throughout the past 20 years. She said that if defendant drank on days when things were not going well for him, she and her siblings stayed out of his way because anything they did might cause him to become angry and physically abusive.
The oldest daughter testified that defendant was constantly violent towards her mother, and alcohol was involved most of the time. Both daughters testified that during an incident in 1995, their parents argued, a drunken defendant yelled at their mother, things were slammed and broken, their mother cried and asked defendant to stop and he hit her. After the mother went to the hospital to get stitches, defendant called the older daughter, who was 11 or 12 at the time, from her bedroom to supervise her infant brother, who was in her parents’ room. Defendant had her lie down on the bed and he got in it with her, pulled her close to him and began kissing her neck. She said she wanted her mother and he responded that he wanted her mother, too. He rubbed her breasts and put his hands down her pants and rubbed her butt, and she squirmed to avoid him and said, “Stop.” He did not and for 10 minutes she screamed, kicked and tried to push him away. Defendant stopped when the phone rang. It was her mother, calling from the hospital, asking her if she was okay and what defendant was doing to her. The mother asked if defendant was hurting her daughter and the latter said yes. At one point, the number two daughter came into her parents’ bedroom and saw defendant on top of her sister, moving his hands over what she considered “sexual parts” of her sister’s legs and chest. Defendant tried to get the oldest daughter to lie back down on the bed, but she refused, and when he went to the restroom, she ran out of the bedroom, grabbed a baseball bat and joined her two sisters in the bedroom they shared. A short time later, the police came to the door and arrested defendant, who asked the oldest daughter what was going on. Before the police left, their mother returned home from the hospital.
The number two daughter also testified that during her senior year in high school, defendant, who had been drinking, was supposed to be counseling her about smoking while they were alone. Instead, he hugged her, which was unusual. He put his hands on her hips and her butt. She pushed him away and told him to leave her alone, but he held her even tighter and told her it was okay.
Defense counsel did not object to any of this testimony.
Defendant’s wife testified that he began abusing her before they married. She said there were “a lot of beatings” and defendant’s suspicion that she was cheating on him was a common reason for abusing her. He drank daily, except for a four or five year period after he was arrested. However, defendant would hit her even when he wasn’t drinking, but not as severely as when he was. She said he repeatedly told her if she ever left him, he would kill her. He pointed a gun at her several times. She confirmed the 1995 domestic violence incident mentioned above, adding that defendant had hit her above the eye with the butt of a gun. She also said that as a result of this incident, defendant pled guilty to domestic violence charges and was placed on probation. In fact, the parties stipulated to the conviction. It was following this conviction that defendant abstained from alcohol. During this abstinence, defendant would slug her in the arm, throw things and yell, but did not beat her. In 1993, when defendant was drunk, he hit her in the arm and head, put his hands around her throat, pointed a gun at her, told her he “should just kill” her and fired, hitting the ceiling. She telephoned his sister, who called the police and defendant was arrested. He put his hands around her throat “more than a handful of times[,]” sometimes saying he should just kill her. On some occasions, she believed him. On another occasion, defendant slapped her when she smiled at his brother.
A sheriff’s detective testified that the girls and their older brother confirmed this incident to him, but defendant claimed his wife tripped and hit her head on a table and he accidentally fell on top of his older daughter.
At this point in the mother’s testimony, defense counsel objected at side bar to her testimony and that of the children as to matters that were “not contained in the Evidence Code section 1109 or police report documentation.” He allowed that the prosecutor may be equally surprised by the testimony.
Defendant requested that CALJIC No. 2.50 be given. It was read to the jury as follows, “Evidence has been introduced for the purpose of showing that in 1995 the defendant committed crimes other than that for which he is now on trial. Except as you will otherwise be instructed, this evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show the existence of the intent, which is a necessary element of the crime charged [the counts involving the number two daughter]. You may also consider it to determine whether the defendant did not reasonably and in good faith believe that the person with whom he engaged or attempted to engage in a sexual act consented to such conduct. [¶] For these limited purposes, you may consider this evidence. You must weigh it in the same manner as you do all the other evidence in the case.”
The court also gave CALJIC No. 2.50.02, which states, “Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence on one or more occasions other than that charged in this case. [¶] ‘Domestic violence’ means abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the defendant has had a child, or is having or has had a dating or engagement relationship. [¶] ‘Abuse’ means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself or another. [¶] If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit other offenses involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes for which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offenses. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crimes.”
Defendant requested the trial court give CALJIC No. 2.50.01, which is a version of 2.50.02 for prior sexual offenses. The trial court refused to give the instruction, finding the 1995 sexual battery of the oldest daughter was remote in time to the charged 2004 incidents involving the number two daughter. The court went on, “[i]t’s relevance relates not so much to the defendant’s character as to the effect it may have had on [the number two daughter] concerning whether or not she was consenting or her reasonable fear or her willingness . . . to just lay back and let it happen. And that insofar as it relates to an activity within the family and the general atmosphere of domestic violence . . . can be included and argued under . . . [CALJIC No.] 2.50.02 . . . .”
It states, in pertinent part, “Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense [on one or more occasions] other than that charged in the case. [¶] If you find that the defendant commmitted a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that [he][she] was likely to commit and did commit the crime [or crimes] of which [he][she] is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed [a] prior sexual offense[s], that is not sufficient by itself to prove beyond a reasonable doubt that [he][she] committed the charged crime[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. [¶] [[Unless you are otherwise instructed, y]ou must not consider this evidence for any other purpose.]
Of course, CALJIC No. 2.50.02 relates solely to domestic violence, which did not include acts perpetrated on defendant’s children.
Defendant calls our attention to certain portions of the prosecutor’s argument to the jury. First, the prosecutor asserted that the 1995 incident, which resulted in defendant’s conviction for domestic violence involving his wife, and the 1993 shooting into the ceiling incidents, established his propensity to beat her. Defendant did not object to this argument at the time it was made and it was consistent with the instruction given. The prosecutor also argued that defendant’s wife and children testified to acts in which she and they, not defendant, got hurt. Again, defendant did not object below and it was consistent with the trial court’s evidentiary ruling. Finally, during closing argument, the prosecutor invited the jury to consider the history of violence by defendant as propensity evidence, suggesting that if he did it before, he engaged in domestic violence as charged. The prosecutor also asserted that if the sex acts with the number two daughter were consensual, the children would not have been afraid of defendant. Both of these matters were not objected to by defendant and were consistent with the instructions given.
Defendant here contends that the prejudice caused by admission of the prior acts of domestic violence and sexual battery outweighed their probative value, therefore, the trial court erred in admitting them. However, construing the record very liberally in his favor, defendant made something akin to an Evidence Code 352 objection only in relation to the prior sexual battery evidence. Therefore, he waived such an objection to the other evidence. (Evid. Code, § 353.) Even if Evidence Code section 1109 may be viewed as relieving the defendant of his duty to object under Evidence Code section 352, the result would be the same. “‘“The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’”’ [Citation.] Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s). [Citations.]” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) None of these factors weigh in favor of exclusion of evidence of prior acts of domestic violence. As the People correctly point out, the trial court need not engage in any specific weighing of prejudicial impact versus probative value on the record. (People v. Prince (2007) 40 Cal.4th 1179, 1237.) Moreover, the evidence was also admissible, as the trial court found, for the non-section 1109 purpose of showing the fear that permeated defendant’s household, and how that fear affected the members of the household, which was relevant to their credibility as witnesses and to the states of mind of the wife and number two daughter.
As to the sexual battery evidence, it was never admitted to show propensity, but on the issue of the credibility of the wife and children. Additionally, it was admitted to show defendant’s intent towards his number two daughter in relation to the charged crimes involving her and to show that he did not reasonably and in good faith believe that she consented to the sex acts he committed on her. Contrary to defendant’s assertion, the prosecutor did not argue, as demonstrated above, that the prior sexual battery could be used as propensity evidence. Finally, we cannot imagine that this evidence could have been more prejudicial to defendant than the jury hearing how he kidnapped, forcibly raped and digitally penetrated his number two daughter as charged here. We also note that defendant failed to object to testimony by his number two daughter that he was sexually inappropriate with her when she was a senior in high school. Surely, this, as much as the evidence of the sexual battery of the oldest daughter, prejudiced the jury against defendant.
Defendant then asserts that evidence of the 1993 and 1995 domestic violence incidents and the 1995 sexual battery was cumulative. However, his failure to object to it on this basis below forecloses his current claim. (Evid. Code, § 353.)
2. CALJIC No. 2.28
Defendant requested CALJIC No. 2.28 be given in relation to “the reports regarding [the oldest daughter] and the prior domestic violence case.” CALJIC No. 2.28 provides, “The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. [Concealment of evidence] [and] [or] [[D][d]elay in the disclosure of evidence] may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying party’s evidence. [¶] Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the [People] [Defendant[s]]____[concealed] [and] [or] [failed to timely disclose] the following evidence: ____ [¶] Although the [People’s] [Defendant’s] ____ [concealment] [and] [or] [failure to timely disclose evidence] was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial. [¶] The weight and significance of any [concealment] [and] [or] [delayed disclosure] are matters for your consideration. However, you should consider whether the [concealed] [and] [or] [untimely disclosed evidence] pertains to a fact of importance, something trivial or subject matters already established by other credible evidence. [¶] [A defendant’s failure to timely disclose the evidence [he] [she] intends to produce at trial may not be considered against any other defendant[s] [unless you find that the other defendant[s] authorized the failure to timely disclose].]”
The actual police reports concerning these incidents, which were given to defense counsel the day before jury selection began, were never introduced into evidence. We, therefore, assume that counsel’s jury instruction request was based on the testimony by the victims of and eyewitnesses to these incidents.
The trial court refused his request, saying, “ . . . [Y]ou can adequately argue as to when things were reported, when you learned about them. . . . And it goes primarily to the credibility of witnesses, not to the integrity or lack thereof of the proponent of the evidence.” The trial court added that CALJIC No. 2.28 contained a lot of information that was unnecessary for the jury to know and it was confusing.
Defendant here contends that the trial court erred in refusing to give CALJIC No. 2.28. However, the record before us does not support defendant’s position that there was a factual basis for the instruction. The last word on the matter, not contradicted by defense counsel, was that the 1993 and 1995 domestic violence incidents and the sexual battery on the oldest daughter were mentioned in a supplemental report disclosed to the defense before the actual police reports were turned over the day before jury selection began. As stated before, the reports themselves were never introduced at trial and, thus, they are not available for our inspection. Whether, as defendant now asserts, they contained statements by the wife and the oldest daughter about any of the three incidents is a matter of speculation. Defense counsel noted before trial began that “none of these witnesses [meaning the wife and the children] would talk with me or my investigator.” As the People correctly note, defendant did not ask for a continuance so he could investigate any possible statements contained in the reports, nor has he disclosed what the reports contained that might have assisted the defense, especially in light of the family’s refusal to speak with him before trial. “It is defendant’s burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm.” (People v. Pinholster (1992) 1 Cal.4th 865, 941.) In light of the circumstances, defendant cannot possibly carry his burden.
Thus, the assertion in defendant’s opening brief, that “the prosecutor knew of the existence of reports of these incidents and acknowledged failing to timely turn them over to the defense” is belied by the record.
Penal Code section 1054.1 requires disclosure by the prosecutor of “[r]elevant written . . . statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at trial.”
3. Trial Court’s Reduction of Defendant’s Conviction of Aggravated Kidnapping to
Simple Kidnapping
After the jury convicted defendant of kidnapping his number two daughter to commit rape or oral copulation, he moved for a new trial, or for a reduction of his conviction to simple kidnapping. Specifically, he asserted that there was insufficient evidence of an increased risk of harm or that the distance was substantial, rather than being incidental to the sex crimes. In their moving papers, the People countered these arguments.
At the hearing on the motion, the trial court indicated that its problem was not with the issues discussed by the parties in their moving papers, but with the sufficiency of the evidence of defendant’s intent to commit rape. The trial court found that the evidence established the number two daughter was apprehensive when she entered defendant’s truck, her movement to the different locations before home were without her consent, that movement was for a substantial distance and it substantially increased the risk of harm to her over and above that involved in the sex offenses, themselves. However, there was no evidence defendant intended to commit sex acts on the number two daughter when he moved her from the bar parking lot. The court added, “ . . . [I]n none of those drunken escapades of the defendant [in the past] did he make any sexual play or advance towards his daughter.” The court went on, “ . . . [The number two daughter] did not testify, and the evidence would not support the inference, that she believed that he intended to rape her and have sex with her . . . or anything other than oral sex.” The court said that while defendant made references which the number two daughter interpreted to mean that they were going to engage in oral copulation, “he ma[d]e no overt physical advances towards her . . . ” However, the court admitted that defendant did try to fondle her breasts and was doing so when he passed out. But, after “coming to” he did not attempt to touch her sexually, and he allowed her to drive them home. The court noted that since defendant used words the next morning just before raping her similar to those he had used the night before during the kidnapping, a reasonable interpretation is that he intended to rape her during the latter. However, defendant’s state of intoxication and “his lack of taking any activity to remove or adjust either his clothing or [hers] to accomplish a sexual act” during the kidnapping created reasonable doubt in the trial court’s mind that defendant had the necessary intent. Therefore, the trial court reduced the verdict to simple kidnapping. The prosecutor objected. The People here contend that the trial court abused its discretion in reducing defendant’s conviction. (See People v. Johnston (2003) 113 Cal.App.4th 1299, 1307.)
Both defendant’s and the People’s moving papers indicated the hearing was scheduled for March 10, 2006. Apparently, at least the attorneys got together with the trial court on that date, as at the March 24, 2006 hearing, both counsel make reference to the tentative position the trial court took on the motion on March 10. However, there is no Reporter’s Transcript for such on March 10, nor is there even a minute order for that date. The practice of having such a coming together of the attorneys and the trial court to discuss substantive issues without a court reporter or even, apparently, a court clerk is a dangerous one, indeed.
Because there is no record of what the trial court said at the March 10 “hearing,” we have to piece together from the remarks of counsel and the court at the March 24 hearing what the trial court said. (See fn. 15, ante.)
The trial court’s discretion in so doing “is guided by the presumption in favor of the correctness of the verdict[.]” (People v. Davis (1995) 10 Cal.4th 463, 524.) As defendant, himself, states, “this means . . . that the [trial] court may not arbitrarily reject a verdict which is supported by substantial evidence. The trial court’s task is to review the evidence independently and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. (People v. Robarge (1953) 41 Cal.2d 628, 633.)
Throughout these proceedings, the trial court never expressed any doubt about the credibility of the number two daughter. In reducing the verdict, it did not even suggest that it disbelieved part or all of her testimony. Rather, it appears that the trial court forgot some rather relevant portions of her testimony. The court found that defendant had not previously, while under the influence, made “any sexual play or advance towards his daughter.” However, the number two daughter testified that when she was a senior in high school and defendant had been drinking, he put his hands on her hips and butt and even when she told him to leave her alone and tried to push him away, he held her even tighter, insisting that his actions were okay. Additionally, both daughters testified to sexual abuse of the oldest daughter by defendant in 1995 when the girl was 11 or 12. Therefore, the trial court’s conclusion that defendant had not made any sexual plays or advances towards his daughter were contradicted by the evidence. Moreover, this evidence was available to the jury to consider specifically on the issue of defendant’s intent on the night of April 21.
The fact that defendant did not on April 21 get to the point in the continuum of action to begin to undress himself or her during the trip, while of apparent great importance to the trial court, is of little importance to this court. The charge was kidnapping with intent to rape or commit oral copulation, not attempted rape or oral copulation.
The fact that he did not pursue his course of conduct upon regaining consciousness, rather than showing he did not have such intent to begin with, as the trial court found, shows only that he was in a stupor or deterred by being so close to home with her now in control, driving the car. She testified that he appeared panicked during this time. The fact that he appeared to be angry suggests more that he had the intent, which was frustrated, than that he never had it. Once they arrived at home, the defendant’s wife almost non-reaction to the news that defendant had tried to put his hands on their daughter and wouldn’t let her go home suggested that this was par for the course and not some alarming aberration in his otherwise appropriate conduct.
Finally, as to defendant’s intoxication, we note that the jury also convicted him of assault with intent to commit rape on April 21, a verdict the trial court did not question. That crime, like aggravated kidnapping, requires specific intent. If, as the trial court found, defendant was too intoxicated to intend to rape or commit oral copulation with her, necessarily he was too intoxicated to have the specific intent to commit rape. Additionally, there was uncontested evidence that defendant was a chronic drunk who could function until he reached the point where he passed out. He committed offenses against his family members while intoxicated, for one of which he pled guilty, choosing not to claim he was so drunk that he did not know what he was doing. There was no evidence that defendant’s level of intoxication on April 21 prevented him from forming the intent to rape or engage in oral copulation with his daughter. Their odyssey consumed over two hours, certainly more than enough time for defendant to think sufficiently clearly, despite his intoxication. Most assuredly, his oft-stated intentions were clear, and, according to her, he was coherent and oriented. He was able to drive the car, while, she thought, feigning being lost. He drove to secluded spots and turned off the lights. He was able to converse with the guard/employee at the railroad station in such a way as to not raise alarm about his condition. The next day, he was able to remember a number of details about the night before, including his version of the facts that she sexually came on to him during the trip. The fact that he (mercifully for her) passed out before he was able to accomplish his stated purpose does not mean the intent did not exist. It did.
Therefore, there was not substantial evidence to support the trial court’s finding that defendant was so intoxicated that he did not have the requisite intent for aggravated kidnapping or that his failure to undress or adjust the clothing of either himself or her suggested he lacked that intent. (See People v. Drake (1992) 6 Cal.App.4th 92, 97.)
A reasonable interpretation of the evidence that he used language during the trip similar to what he used just before performing the sex acts on her the next morning was that he had the requisite intent during the kidnapping. This further undermines the trial court’s ruling.
Disposition
The trial court’s reduction of his conviction of kidnapping for rape or oral copulation to simple kidnapping is reversed. Defendant’s convictions, as found by the jury, are affirmed. The sentence is vacated and the matter is remanded for resentencing.
We concur: McKINSTER, J., GAUT, J.