P v. EARLE

Filed 3/19/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Cameron Earle was charged in two separate cases with indecent exposure, a misdemeanor, and sexual assault, a felony. The charges arose from entirely distinct and dissimilar incidents with no apparent historical connection to one another. After first ordering the charges consolidated, the trial court denied a motion by defendant to sever them for trial.

At trial defendant tacitly conceded the indecent exposure charge, proof of which was strong. The underlying conduct occurred in broad daylight; the perpetrators license number, which the victim recorded, belonged to a car then owned by defendant; and the victim positively identified defendant from a properly conducted photographic lineup.

The assault case was considerably weaker. The underlying incident occurred at night in a parked car illuminated only by overhead parking lot lights. The victims description of her assailant and his vehicle did not match defendant or his vehicle. She characterized her assailant as looking Mexican, with light brown skin resembling her own; but defendant presents a distinctly pallid, European appearance in photographic exhibits, was described by a police booking officer as white, and apparently looked European to the victim of the indecent exposure, whose description to police resulted in a photographic lineup all but one of whose subjects has an unmistakably northern European appearance. The victim described her assailant as skinny, but photographs of defendant suggest an athletic build. The victim failed to notice anything unusual about the assailants forehead or ears, but the photographs depict a deeply furrowed brow and protruding, possibly damaged ears. The pictures show an unmistakably athletic bull neck that, like defendants prominent ears and deeply furrowed brow, contrasts distinctly with the assailants features in a police sketch.

The victim described the assailants vehicle as a 1986 Ford Bronco, but the only other witness said it was a pickup. The victim seemed to confirm her own original perception shortly after the assault, when she reported a Ford Bronco to police as possibly the suspects vehicle. But defendant did not drive a 1986 Bronco; he drove a 1981 Chevrolet Blazer. Furthermore, defendant was a world-class competitor in the sport of submission grappling, but the victim of the assault managed to break the assailants grasp, escape the vehicle in which he sought to subdue her, and flee the scene.

These and other facts, discussed in greater detail below, provided fertile ground for a reasonable doubt in jurors minds that the victim had correctly identified defendant as her assailant. Given this background we conclude that the court committed reversible error by permitting the prosecution, through the expedient of a joint trial, to place the strongly incriminating evidence of the misdemeanor charge before the same jury that would have to decide the much more difficult felony assault chargea charge to which it was irrelevant, at least in the absence of foundational evidence that was not presented. This led to a grossly unfair trial in which the prosecutor explicitly urged the jury to convict defendant of the assault based upon his commission of the indecent exposure, which the prosecutor compared to DNA evidence and modus operandi, and cited as proof that defendant was a predator and scary guy. Indeed the prosecutor relied on a variety of spurious legal theories to place the indecent exposure before the jury, as evidence of the assault, as often and emphatically as possible. The indecent exposure thus played a central role, and quite possibly a decisive one, in securing a conviction on the assault charge. We have thus concluded that the trial court abused its discretion by denying the motion for separate trials, and that even if that ruling was within its discretion, the resulting trial was so grossly unfair as to deny defendants right to due process of law. We will therefore reverse the assault conviction.

Background

A. The Indecent Exposure

Gina Doe[1] testified that around 4:00 in the afternoon of September 30, 2004, while walking into the San Jose mobile home park where she lived, she noticed a white Ford sedan driving next to her with its windows down. The driver, whom she identified at trial as defendant, told her to [c]ome here. On approaching the car, she saw that defendant was naked from the waist down and masturbating his erect penis. She fled in search of aid and managed to write down defendants license number while he turned his car around. As she continued calling for assistance, he drove away.

Gina gave police the license number she had recorded. It was stipulated that this number was registered to a white Ford Probe owned by defendant. Gina subsequently viewed a photographic lineup in which she identified an October 2002 photo of defendant as the man who exposed himself to her. The defense offered no challenge to her testimony.

B. The Assault

Gloria Roe (see fn. 1, ante) testified through an interpreter that in late 2004 she was employed selling tamales from a table in a parking lot outside a San Jose market. On December 30 of that year, she arrived at the lot shortly after 5:00 a.m. to set up her table. At some point she decided to adjust the position of her car. As she entered it, with one leg still outside, a man appeared at the door. She asked him to help her. Instead of replying, he lifted and half-pushed, half-threw her into the front seat, where they began to struggle. He pulled her head back by the hair while she sat on the center divider holding the steering wheel to keep him from forcing her into a lying position.

She asked him if he wanted money. He said no, told her to stop struggling, and said that he had a gun and a knife.[2] He spoke to her in what Gloria, who does not speak English, described as kind of broken half Spanish. Her told her to allow myselfallow myself to have it done . . . . Instead she kept struggling. I wasnt just going to let him do what he wanted. He seemed to become more aggressive and to be infuriated by her apron and fairly tight pants . . . . She lifted a leg and tried to push him out of the car. At some point she got him to stop pulling her hair, and was able to open the passenger door. She pushed him as hard as [she] could and . . . shot out the door on the other side. She ran to a nearby bakery, where she enlisted the aid of one of its workers. She testified that the two of them ran back to the scene of the assault in time to see the assailant drive away.

C. Description of, and Opportunity to Observe, Assailant

Gloria testified that the sun had not yet risen when she was attacked, and there was no light on inside her car. However, she testified, the drivers door was open and she could see the assailants face from the overhead parking lot lights. She insisted that she got a good look at his face from a distance of about six inches. Interviewed by Detective Jorge Gutierrez shortly after the attack, Gloria described her assailant as about 5 feet 9 inches tall, and thin. She said he was wearing a black jacket.[3] According to Detective Gutierrez, Gloria described her assailant as a light-skinned Hispanic male . . . . However Gloria herself testified not that his skin was light, but that it was light brown, similar to her own. She denied using the term Hispanic to police, but acknowledged telling them that her assailant looked Mexican American. She testified that she called him a Pocho, meaning, someone who was born here and has Mexican parents. She considered him Mexican-American as opposed to just Mexican, not because of his appearance but because of the way he was speaking Spanish, that he didnt speak it well.

About a week after the assault Gloria described the assailant to a police artist. She told the artist the resulting sketch, which was introduced into evidence, resembled the assailant. Defense counsel in her summation described the sketch as look[ing] similar to a photo that was taken of Mr. Earle in . . . 2002. Absent from the sketch, however, were the receding hairline, deeply furrowed brow, heavy neck, and protruding ears depicted in photographs of defendant. The face in the sketch is also thinner and has a more angular chin than the squarish face shown in photographs of defendant.

D. Assailants Vehicle

After returning to the area of the assault in the company of the bakery employee, Gloria saw her assailant climb into a truck and drive away. She initially described the truck as pass[ing] right in front of us, but on cross-examination said it passed at a great distance. She told police it was a 1986 black Ford Bronco. However, the bakery employee testified that it was a dark pickup truck.

Asked at trial whether she remembered anything unusual about the truck, Gloria testified, We noticed that it did not have the back window. She did not know whether the window was broken out or rolled down, adding, It was far away that I saw this. There is no evidence that she mentioned a missing window in her original statement to police; she apparently first mentioned it after seeing defendants truck.

On January 5, 2005less than a week after the assault, and not far from its locationGloria saw a vehicle that she thought resembled the assailants. It was a black Ford Bronco with a rolled up, intact rear window. She wrote down the license number and phoned Detective Gutierrez, telling him that she thought she had found the assailants vehicle. She later learned that the vehicle she saw was not involved in the assault.

It was stipulated that [f]rom December 30, 2004, through January 18, 2005, defendant owned a black 1981 Chevy Blazer. It apparently had a cracked or missing rear window. At trial Gloria identified it from photographs as the truck she saw driving away from the scene of the assault. Up until she saw it, she had never described the assailants vehicle to police as anything but a 1986 Ford Bronco. Asked to explain this discrepancy, she testified that she never meant the year as anything more than an estimate. She also testified, I didnt get that close of a look to see the exact make of the car. And I dont really know the types of truck that well, but to me it looked like the type of carit looked to me like a Bronco. And then I found out later that it was actually a Chevy that looks like a Bronco.[4] A friend of hers in Mexico had a Bronco, and she herself had a sport utility vehicle, a 2003 GMC Envoy.

E. Defendants Identification and Arrest

In the early afternoon of January 18, 2005, Gloria drove her own truck to a car wash about 10 minutes from the location of the assault. While seated in a waiting area looking out through some windows, she saw from afar what she described as the same truck and the same guy who had attacked her. He was sitting in his truck in the parking lot of a nearby store, facing in her direction. She watched him for a couple of minutes, she testified, to see if that was the person that had attacked [me]. She acknowledged that she could not see his eyes, height, weight, or whether he was Hispanic. Nor could she read the trucks license plate. Asked if she could tell at that distance whether it was a Blazer or a Bronco, she replied, All I know is that it was the person who attacked me and it was the vehicle.

When she was really sure . . . it was . . . himstill before she was close enough to read the license plateshe telephoned Detective Gutierrez and left him a message. She continued to watch the man in the truck for several minutes as he sat looking all around, kind of like he was looking for someone. He then moved over to another parking space. He just kept moving around from one parking space to another. He would be in one space for a few minutes and then would move to another space.

On the telephoned advice of her brother, she left the car wash to get the license number. She followed the truck on foot as it moved into another stores parking lot. When she saw it coming back towards her, she ducked into a store, writing down the license number as it passed. Her brother arrived and picked her up. They continued to watch the truck as it moved from parking space to parking space. At some point Glorias own truck emerged from the car wash and the black truck left the area.[5] By now Gloria was in touch with the police, who told her to follow him. She and her brother complied.

The driver made no attempt to evade them, though they were directly behind him. After driving a few blocks he stopped, got out, and went into a house. Two or three minutes later, the police arrived and went to the door. Shortly thereafter they escorted defendant out of the house, exhibited him to Gloria, and asked if this was the man who had attacked her. At that moment he was surrounded by uniformed police officers. She said yes, that he was the person. He was wearing the same black jacket that he had been wearing on the day he attacked [her]. (See fn. 3, ante.) He also had something on his head. Her assailant had not worn a hat, and the man she saw at the car wash had not worn a hat.

F. Charges and Proceedings

Defendant was charged by information with assault accompanied by intent to commit rape (Pen. Code, 220), assault using a deadly weapon (Pen. Code, 245, subd. (a)(1)), and indecent exposure (Pen. Code, 314, subd. (1) ( 314(1))).[6] The trial court denied defendants motion to try the assault separately from the indecent exposure charges. Before the jury, no defense was offered to the indecent exposure charges, but the assault charges were vigorously contested on the ground that Glorias identification of defendant and his truck was mistaken. In support of that theory, the defense elicited testimony from an expert on eyewitness identifications, who was limited on prosecution motion to relevant general principles of perception and recollection. Jurors deliberated for five and one-half hours over two days. During deliberations they sought a readback of testimony concerning the language in which the assailant spoke. Ultimately the jury found defendant guilty of all charges and sustained an allegation that he had personally used a deadly weapon in the assault.

After trial, defendant failed to appear for a probation interview and then for a scheduled court hearing. He apparently remained at large for about five months. Upon his return to custody he was apparently charged with, and eventually entered a guilty plea to, wilful failure to appear (Pen. Code, 1320.5). The trial court sentenced him to consecutive terms of four years for assault with intent to commit rape, one year for personal use of a deadly weapon, and eight months for failure to appear, for an aggregate term of five years, eight months.[7]

Defendant filed this timely appeal.

Discussion

I. Order Denying Separate Trials

In his motion to try the indecent exposure charge separately from the assault charge, defendant contended that the latter was relatively weak in that it depended on the credibility of the victims identification of defendant and his vehicle.[8] Defense counsel contended in written argument that joint trials would be prejudicial because evidence of the indecent exposure, which would be inadmissible in a separate trial of the assault, would tend to make the jury think that he had committed the latter offense, in part through improper inferences about criminal character. Defense counsel contended that the indecent exposure was inflammatory in the context of the assault charge, and constituted a strong case, which the prosecutor would use to bolster the weaker assault case by aggregat[ing] the evidence. The prosecutor did not submit written opposition, but argued at the hearing, among other things, that the two charges were admissible against each other and that the assault case was not weak in light of the victims identification and the police artists sketch, which he described as incredibly similar, almost identical to a photograph of the defendant that was used in the photographic lineup . . . .

In support of the motion, defense counsel submitted a declaration by Brian Abbott, Ph.D., a clinical and forensic psychologist with 28 years experience in treating and evaluating sex offenders. Dr. Abbott declared that roughly 20 to 30 percent of criminal exhibitionists may also commit rape.[9] He drew a distinction between primary exhibitionism, in which the actor finds exposing himself to be sexually gratifying in itself, and transitional exhibitionism, in which acts of indecent exposure serve as a psychological step toward engaging in hands-on sexually assaultive behavior. In the latter situation, the subject fantasizes about rape or other assaultive sexual behavior while exposing himself, and [o]ver time, the repeated fantasizing about rape serves to breakdown [sic] the exhibitionists inhibitions against acting in such ways. Because this progression is subject to various social, physiological, and personality dynamics, it is impossible to predict which exhibitionists are likely to, or will, commit more serious offenses. In sum, Exhibitionistic behavior alone cannot be considered indicative of or a precursor to an individual committing an act of rape. In fact, it is more likely exhibitionists will only engage in exhibitionistic behavior rather than to progress to acts of hands-on sexual assault, such as rape. Accordingly, it would be inappropriate and prejudicial for a trier of fact to hear evidence that a person who commits one or more acts of exhibitionism would be reasonably likely to commit rape in the future.[10]

The court denied the motion for separate trials. It explained its ruling only by saying, the defendant has not shown that hes prejudiced by both charges being tried together . . . .

II. Governing Principles

Penal Code section 954 ( 954) addresses, among other things, the joinder of criminal charges in pleadings and their severance for trial. As relevant here it provides: An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts . . . . [T]he court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . . ( 954.)

The first of these clauses permits the prosecutor to combine multiple charges in a single accusatory pleading provided they meet the stated criteria, i.e., are connected together in their commission, or [constitute] different statements of the same offense[,] or . . . [belong to] the same class of crimes or offenses . . . . The second clause assumes that the charges have already been joined in the pleadings but empowers the court, in its discretion, to order them tried separately in the interests of justice and for good cause shown . . . . ( 954.) These provisions raise distinct questions: Whether the charges are eligible for joinder, i.e., satisfy the statutory criteria for joint pleading; and whether, despite their eligibility, they ought to be tried separately to ensure a fair trial. (See People v. Hill (1995) 34 Cal.App.4th 727, 734 [Even where joinder is statutorily authorized, severance may be required if joinder results in prejudice so great as to deny the defendant a fair trial].) Defendant contends that both of these questions point to error, i.e., that the indecent exposure charge was ineligible for joinder with the assault charge and that, even if the charges were properly joined in the first instance, they could not be fairly tried together. Because we find the latter point dispositive, we do not address the former.[11]

The statute explicitly vests the trial court with discretion to determine whether to order separate trials. ( 954.) This of course triggers the deferential abuse-of-discretion standard of appellate review. To successfully challenge the denial of a severance motion, an appellant must  make a  clear showing of prejudice  and that the ruling      falls outside the bounds of reason,     (People v. Soper (Feb. 19, 2009, S152667) ___ Cal.4th ___, ___ [2009 Cal. LEXIS 1100, *23] (Soper), quoting Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220; italics omitted.) This demands a stronger showing than would be sufficient to require reversal based on the erroneous admission of evidence of uncharged crimes. (Ibid.)

The trial courts denial of a motion to sever must be evaluated in light of the facts and circumstances apparent to the court at the time of its ruling. (Soper, supra, ___ Cal.4th at pp. ___, ___, ___ [2009 Cal. LEXIS 1100, at pp. *25-26, 31-32, fn. 10.) However, [e]ven if a trial courts severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the defendant shows that joinder actually resulted in gross unfairness amounting to a denial of due process.  [Citation.] ( People v. Macklem (2007) 149 Cal.App.4th 674, 698; accord, Soper, supra, ___ Cal.4th at pp. ___, ___, ___ [2009 Cal. LEXIS 1100, at pp. *48-49].)

As indicated by the foregoing, the key inquiry before the trial court on a motion to sever is whether joint trials pose an unacceptable risk of prejudice, i.e., of unfairly affecting the adjudication of one or more of the charges. (See People v. Smith (2007) 40 Ca1.4th 483, 510 [To demonstrate that a denial of severance was reversible error, defendant must clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried ].) The chief source of potential prejudice is spillover effect, i.e., the risk that evidence not admissible as to one of the charges, but admitted in connection with another, will affect the verdict on the charge as to which it is inadmissible. (See Soper, supra, ___ Cal.4th at pp. _____ [2009 Cal. LEXIS 1100, at pp. *27, 44].) Obviously there can be no spillover effect unless some of the evidence to be heard by the jury is inadmissible as to at least one of the charges. Therefore the first consideration in evaluating a motion to sever is cross-admissibility, i.e., the extent to which evidence of Charge A would have been admissible in a hypothetical separate trial of Charge B, and vice versa. (Soper, supra, ___ Cal.4th at pp. ___, ___, ___ [2009 Cal. LEXIS 1100, at p. *26.)

If the jury will be exposed to evidence that is not cross-admissible, then the possibility of spillover effect is present and the court must proceed to evaluate the risk that the jury will be unfairly influenced by it. (Soper, supra, ___ Cal.4th at p. ___ [2009 Cal. LEXIS 1100, at p. *27], quoting People v. Bean (1988) 46 Cal.3d 919, 938 [If we determine that evidence underlying properly joined charges would not be cross-admissible, we proceed to consider whether the benefits of joinder were sufficiently substantial to outweigh the possible spill-over effect of the other-crimes evidence on the jury in its consideration of the evidence of defendants guilt of each set of offenses  ].) Courts have identified several factors to be considered in evaluating the risk. The pertinent ones here are whether the spillover evidence is likely to unusually inflame the jury against the defendant, and whether any of the charges as to which the evidence is not admissible rests on a weak case that may be unfairly bolstered by the spillover evidence. (Alcala v. Superior Court, supra, 43 Cal.4th 1205, 1220-1221, quoting People v. Mendoza (2000) 24 Cal.4th 130, 161; see Soper, supra, ___ Cal.4th at pp. ___, ___, ___ [2009 Cal. LEXIS 1100, at pp. *27, 41].) In essence these are specific articulations of two broader variables: How likely is the spillover evidence to influence the jurors, and how susceptible is the charge to such influence? Once the spillover evidence has been identified and its potential to influence the verdict evaluated, the trial court must weigh the resulting risk of prejudice against the advantages of joint trials. (Soper, supra, ___ Cal.4th at pp. ___, ___, ___ [2009 Cal. LEXIS 1100, at p. *27].)

We now apply these principles to the case at hand.

III. Cross-Admissibility

A. Introduction

We turn to the question of cross-admissibility, i.e., the extent to which evidence offered to prove the indecent exposure charge would have been admissible to prove the assault charge, or vice versa. In support of the motion for separate trials, defense counsel asserted that there was no cross-admissible evidence in the case, adding, [O]bviously, there are no witnesses or evidence that will be used in both charges . . . . She argued that the indecent exposure and the assault were too dissimilar, too widely separated in time, and too unrelated in occurrence for either to have any proper bearing on the other.[12] She also asserted that each charge would rais[e] impermissible innuendoes of character if introduced in a trial of the other. She expressed the prescient concern that the People will try to promote that if a person would expose themselves that they are likely or probably would, in fact, commit the violent act of rape, adding that this would be an inflammatory use of the indecent exposure. These statements were sufficient to tender the issue whether, in a separate prosecution of the assault charge, evidence of the indecent exposure would be excluded on grounds that it was irrelevant, that its potential for prejudice outweighed any probative value it might be found to have, or that it violated the general prohibition against using evidence of bad character to prove the commission of a crime. (See Evid. Code, 352 ( 352), 1101 ( 1101), subd. (a).)

The prosecutor contended orally that the assault evidence would be admissible in a separate trial of the indecent exposure, and vice versa, under [Evid. Code section] 1108 and 1101[, subdivision] (b).

The trial court expressed no opinion on cross-admissibility, instead reciting the boilerplate finding that defendant had failed to demonstrate that a joint trial would cause him undue prejudice.

B. Intent

Respondent suggests that the indecent exposure was relevant to the assault in that it could support an inference that the latter was committed with intent to commit rape, an element of one of the two aggravated assault charges. On the evidence before the jury, such an inference would be purely speculative. It necessarily rests on the supposition that where a man has criminally exposed himself on one occasion, and he thereafter commits an assault, it may reasonably be inferred from the exposure incident that he acted in the second incident for the purpose of committing rape rather than, e.g., to secure control of the victim in order to obtain property, or to express irrational rage. The evidence before the jury afforded no basis for such a supposition. For all the jury could know, criminal exhibitionists as a class might be characterized by an unusual inhibition against physical contact, and a particular inability to commit sexual assault. They might thus be less likely than randomly selected members of the public to commit such a crime, or form the intent to do so. That this hypothesis is apparently contrary to the only expert opinion in the record, as discussed in more detail below, cannot sustain an inference the jury had no basis to draw.

Further, this theory begs the only real question in the case, which is whether defendant was the assailant. The proposed inference of intent necessarily supposes that he was; its necessary premise is that the indecent exposure and the assault were committed by the same person, i.e., defendant. But jurors were given many quite substantial reasons, discussed in detail below, to doubt this premise. At the same time, they had no reason at all to doubt that the purpose of the assault, whoever committed it, was to rape Gloria. According to her account of the attack, which went entirely unchallenged at trial, the assailant all but told her he intended to rape her. After expressly denying that he wanted money, he told her to stop struggling and to allow [herself] to have it done . . . . She described him as furiously stymied by the obstruction of her apron and fairly tight pants . . . .[13] Unless the jury simply refused to believe her accountin which case it would have acquitted defendant without worrying about the assailants intentthere could be no doubt about the issue. The prosecutor told the jury as much early in his argument: [T]heres no questionand . . . nothing to be disputed that the victim was assaulted by a person with the intent to commit rape. He soon repeated the point: Theres no question that the perpetrator was assaulting her with the intent to commit rape. We agree, as would any reasonable juror. Intent simply was not an issue on which a reasonable juror could entertain any doubtat least, not without doubting the entire prosecution case.

This is not to suggest that a defendant can limit the prosecutions evidence merely by  not putting things at issue.  (People v. Thornton (2000) 85 Cal.App.4th 44, 48.) A mere failure to contest an element of the prosecutions case cannot by itself bar evidence to prove that element. But before potentially prejudicial evidence can be admitted to show an element of the offense there must be some concrete basis to suppose that the that the jury might fail to find that element beyond a reasonable doubt. (See People v. Balcom (1994) 7 Cal.4th 414, 423 [because the victims testimony that defendant placed a gun to her head, if believed, constitutes compelling evidence of defendants intent, evidence of defendants uncharged similar offenses would be merely cumulative on this issue Accordingly, . . . the limited probative value of the evidence of uncharged offenses, to prove intent, is outweighed by the substantial prejudicial effect of such evidence]; People v. Thornton, supra, 85 Cal.App.4th at p. 49) This was precisely the case here: even if the indecent exposure had possessed some logical tendency to establish the intent element of the assault chargewhich, again, it did notits probative value on that point was wholly theoretical, and it would have been a patent abuse of discretion to admit evidence of the indecent exposure for this purpose in a separate trial of the assault.

The dissent attempts to save this rationale by exploiting ambiguities in the term intent. This approach is encapsulated in the assertion that [t]he two offenses have very similar intent elements. (Dis. opn. post, p. 9, fn. 4.) This is true, if at all, only in some lay sense, and an abstract, impressionistic one at that: paradigmatically, both crimes involve intentional sexual imposition upon, and at least potential insult to another, albeit psychological in one case and physical in the other. But if that gives them very similar intent elements, then the same may be said of embezzlement and armed robbery. Indeed, all sex crimes have very similar intent elements, and the point the dissent is attempting to refutethat the two crimes here shared nothing but their sexual characteris instead reinforced.

The dissents blurring of the concept of intent is also reflected in its assertion that the indecent exposure was relevant to intent because it showed . . . defendants sexual intent toward lone female strangers. (Dis. opn. post, at p. 17.) But as the dissent goes on to acknowledge, the requisite mental state for the assault charge was intent to commit rape, not lewd sexual intent toward female strangers. (Dis. opn. post, at p. 17; see People v. Trotter (1984) 160 Cal.App.3d 1217, 1222, quoting People v. Cortez (1970) 13 Cal.App.3d 317, 326 [Courts recognize a distinction . . . between the intent to rape and lewdness, indecency and lasciviousness either alone or accompanied by an intent to seduce ].) The proper use of the term intent in the present context is the mental elementthe mens reathat the prosecution is required to prove in order to make a prima facie case of guilt. (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, italics omitted [Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense].) The mens rea for ordinary assault is a general intent to commit an act that by its nature would directly and probably result in the application of force to someone . . . . (CALCRIM No. 914; see People v. Colantuono (1994) 7 Cal.4th 206, 214.) Assault with intent to commit rape further requires, as the name says, the specific intent to commit rape, i.e., sexual intercourse by force. (People v. Trotter, supra, 160 Cal.App.3d at p. 1224; see CALCRIM No. 890.) These elements bear no similarity to the mental elements for indecent exposure, which are that (1) the defendant acted willfully ( 314(1)), meaning essentially that he knew he was exposing his genitals (see In re Smith (1972) 7 Cal.3d 362, 364 (Smith)); (2) he intended by his conduct to direct public attention to his genitals (id. at p. 366); and (3) he acted for purposes of sexual arousal, gratification, or affront (ibid., fn. omitted).

The dissents attempt to equate these quite distinct mental states may be understood to rest on some conceptual or symbolic parallel between indecent exposure and rape in that a paradigmatic act of indecent exposuresuch as the one shown hereinvolves a kind of assault upon the victims sensibilities. Perhaps the dissent means to imply that indecent exposure typically entails the infliction, or intent to inflict, a mental or emotional outrage or insult to the victim, which conceptually resembles the physical insult or outrage inflicted on the victim of a sexual assault. But this kind of symbolic comparison simply will not substitute for a focus on the actual elements of the offenses. Moreover, while insult is a common feature of the paradigmatic indecent exposure, it is not a necessary element of the crime. A purpose of affront[ing] the victim may satisfy part of the mens rea, but it is not necessary; the crime is also complete if the defendant acts for purposes of his own or the victims (presumably imagined) arousal or gratification, whether or not he intends to cause affront or believes he is doing so. ( 314(1).)

The indecent exposure was simply not relevant to show the intent required for the assault charge, and could not be admitted for that purpose.

C. Motive

Intermingled with respondents argument on the issue of intent is the suggestion that the indecent exposure would have been admissible to show a sexual motive for the assault. Properly understood, the motive for a crime is never an issue in its own right, but may operate as a basis to establish identity on the rationale that the defendants possession of a reason (motive) to commit the charged offense increases the likelihood that he did so. The concept is familiar to anyone who has read or watched a detective story. One who stands to inherit money from a murder victim will routinely come under suspicion for the death, and if he is charged, the fact of his expectancy may be offered in court as circumstantial evidence that it was indeed he who killed the victim.

Here the attempt to justify the trial courts ruling on such a theory fails because defendants commission of an indecent exposure simply could not show, without more, a motive to commit rapeexcept, yet again, through the undemonstrated premise that one who commits indecent exposure also wants, needs, or wishes to commit rape. Nor does the dissent appear to defend this theory of admissibilityexcept by blurring motive and intent, as in the assertion that the quintessential element of sexual assault is the sexual motivation for the assaultthe intent to commit rape. (Dis. opn. post at 9.) But motive is a much broader concept than intent; it is not an element of the offense at all; and it is relevant only insofar as it tends circumstantially to increase the likelihood that the defendant, rather than another, committed the charged offense. Here no one questions that both crimes were sexually motivated. But many people other than defendant engage in some conduct for sexual motives. The question is inwhat conduct is defendant sexually motivated to engage? On this record, evidence of the indecent exposure had no tendency at all to show that he had a motive to commit sexual assault. The proposed inference of motive is no more logical than saying, Joe manufactured methamphetamine, therefore he had a motive to steal a car. Without more, such a statement is simply a non sequitur.

D. Identity

Neither respondent nor the dissent makes any attempt to defend the use the prosecutor actually made of the indecent exposure evidence, which was to distract the jury from weaknesses in his own case on the issue of identity. Indeed the prosecutor explicitly cited the indecent exposure as modus operandi evidence, an implicit claim that it showed defendant, as opposed to someone else, to have been Glorias assailant. He also claimed that the indecent exposure furnished a substitute for DNA in tying defendant to the assault.

The evidence was patently irrelevant for any such purpose. Evidence of uncharged misconduct has long been admissible to prove identity when the uncharged misconduct and the charged offense . . . share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. (People v. Ewoldt, supra, 7 Cal.4th at p. 403, italics added; accord, People v. Matson, supra, 13 Cal.3d at p. 40; Soper, supra, ___ Cal.4th at p. ___ [2009 Lexis 1100, at p. *30].) But such an inference depends upon the presence of distinctive marks that are shared by the uncharged and charged crimes. (People v. Thornton (1974) 11 Cal.3d 738, 756, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)  [T]he inference of identity arises when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.  (Ibid., , quoting People v. Haston (1968) 69 Cal.2d 233, 245-246; italics added.)  The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.  (Ewoldt, supra, 7 Cal.4th 380, 403; Soper, supra, ___ Cal.4th at p. ___ [2009 Lexis 1100, at p. *30].)

Similarly, an inference of identity can be drawn from a distinctive modus operandi, but again, to be admissible on this basis, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed both crimes. (People v. Bradford (1999) 15 Cal.4th 1229, 1316.) These common marks must be distinctive rather than ordinary aspects of any such category of crime. They must be sufficiently distinctive that they bear defendants unique signature. Reaching a conclusion that offenses are signature crimes requires a comparison of the degree of distinctiveness of shared marks with the common or minimally distinctive aspects of each crime. (People v. Bean (1988) 46 Cal.3d 919, 937; italics added.)

Obviously the two incidents here share no marks distinguishing them from other indecent exposures or other sexual assaults. Both involved taking advantage of unwilling victims, but this is true of all attempted rapes and many, if not the vast majority of, indecent exposures. Certainly this feature is not so distinctive as to set these two crimes apart. Much the same is true of the prosecutors argument to the jury that the crimes had the same perpetrator because the offender in both cases sought out a woman that was alone while he was using his car. Elsewhere he described the perpetrator as singling out a victim using his own vehicle[,] [a]nd when she tried to escape, he followed her. Ginas somewhat confusing testimony could be understood to mean that defendant made some attempt to follow her after initially exposing himself, but there is no evidence that the assailant attempted to follow Gloria after she escaped his grasp and fled. This leaves the commonplace facts that the offender in both cases used an automobileinstead of traveling to and from the scene by foot, bicycle, or helicopterand that he chose a victim who was alone rather than one in a position to readily secure aid. The choice of an isolated victim does not remotely approach the level of distinctiveness required to support an inference of identity. By their very nature, most sex crimes are committed in seclusion without third party witnesses or substantial corroborating evidence. (People v. Falsetta (1999) 21 Cal.4th 903, 915; see People v. Thomas (1978) 20 Cal.3d 457, 468 [noting the circumstances of privacy and seclusion surrounding the commission of most sex offenses], impliedly overruled on another point in People v. Tassell (1984) 36 Cal.3d 77, 87-89, & fn. 8, as stated in People v. Alcala (1984) 36 Cal.3d 604, 634, fn. 18.) Nor does anything distinctive appear in the mere use of a vehicle, particularly where, as here, it is not the same vehicle or used in the same manner. The indecent exposure was committed from within the perpetrators vehicle; he never left it. The assailant, in contrast, parked away from the victim, snuck up on her, and carried out the attack inside her vehicle. The only feature the two crimes really had in common, aside from their sexual character, was that the perpetrator traveled to and from them by car. Given the obvious advantages of a private automobile for this purpose, it is hardly surprising that innumerable cases share the same feature. (See People v.Bean, supra, 46 Cal.3d at p. 937 [several common features, including taking and abandoning victims car, lacked sufficient distinctiveness to establish modus operandi].)

The two crimes had no distinguishing characteristics in common.[14] They simply were not similar. They did not even involve the same, or notably similar, actsa mark that may ordinarily be taken for granted in cases involving the use of uncharged crimes to prove identity. It is one thing to find a man guilty of armed robbery based on his previous commission of that offense. But to base such a finding on an act of shoplifting passes beyond speculation into the realm of hunch or fancy. Here the jury had no rational basis to infer from the facts surrounding the indecent exposure that it was defendant and not someone else who committed the far more serious, violent offense of sexual assault, on another occasion, under entirely different circumstances. The indecent exposure was simply not relevant to any issue in the assault case and could not have been introduced in evidence in a separate trial of that case.

E. Propensity

The only colorable basis for admitting evidence of the indecent exposure in a hypothetical separate trial of the assault would have been that it was admissible under Evidence Code section 1108 to show that defendant had a propensity or predisposition to commit sexual assault. The prosecutor alluded to this theory, respondent defends it, and the dissent endorses it in passing. In our view it presents two distinct questions: whether Evidence Code section 1108s exception to the rule against propensity evidence extends to proof of a wholly different crime; and whether, assuming it does, evidence of defendants indecent exposure had any tendency in reason, on the evidence before the jury, to establish such a predisposition. We do not finally reach the first question, but we answer the second with a resounding negative.

It is of course the general rule that evidence of uncharged misconduct is not admissible to prove a predisposition to such conduct, even when it would otherwise be relevant to establish misconduct on a specific occasionsuch as the occasion of a charged criminal offense. (See 1101, subd. (a).) Although the rule is codified in rather indirect terms, its gist is that parties in both civil and criminal cases are generally prohibited from introducing evidence of a general character for good or bad conduct, or a predisposition or propensity to engage in conduct of a particular kind, to show conduct on a particular occasion. (See ibid.) Evidence Code section 1108 creates an exception to this rule, though again the point is expressed rather obliquely: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. (Evid. Code, 1108, subd. (a).)

According to its sponsor, the statute was intended to provide explicitly that evidence of other offenses within the scope of the section is not subject to 1101s prohibition of evidence of character or disposition, and thereby to permit[] courts to admit such evidence on a common sense basiswithout a precondition of finding a non-character purpose for which it is relevant . . . . (Letter by Assemblyman Rogan re Assem. Bill No. 882 (1995-1996 Reg. Sess.) published in 2 Assem. J. (1995-1996 Reg. Sess.) p. 3278 (Assembly Journal), reprinted at 29B pt. 3 Wests Ann. Evid.Code (1999 pocket supp.) foll. 1108, at pp. 40-41 (Rogan Letter) [bill was modeled on Rules 413-15 of the Federal Rules of Evidence, and adapts the principle of these rules to the framework of California law].) The object is to allow rational assessment by juries of evidence so admitted. This includes consideration of the other sexual offenses as evidence of the defendants disposition to commit such crimes, and for its [sic] bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense. (Ibid.; see People v. Reliford (2003) 29 Cal.4th 1007, 1009, italics added [section 1108 allows evidence of the defendants uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendants disposition to commit such crimes].)

The statute implicitly abrogates prior decisions . . . indicating that propensity evidence is per se unduly prejudicial to the defense. (Falsetta, supra, 21 Cal.4th 903, 911; People v. Abilez (2007) 41 Cal.4th 472, 502 (Abilez).) Its purpose, however, was to relax the traditional limits, not abolish them. Thus a trial court may not admit or exclude every sex offense a defendant commits, but must consider other factors bearing on the relevance, probative value, and prejudicial potential of the evidence, including  its similarity to the charged offense.  (Abilez, supra, 41 Cal.4th at p. 502, quoting Falsetta, supra, 21 Cal.4th at p. 917; italics added in Abilez.) Obviously, the lack of similarity between charged and uncharged offenses can be enough by itself to justify an exclusion of the latter in an exercise of the trial courts discretion. (Abilez, supra, 41 Cal.4th at p. 502.) Logically, it can also be enough to compel its exclusion where, as here, any inference of predisposition to commit the charged offense would be wholly speculative, i.e., where the uncharged offense has no tendency in reason to show that the defendant actually has the propensity whose proof the statute authorizes.

The statute would clearly authorize the admission of evidence of an indecent exposure in a second prosecution for indecent exposure, on the rationale that the defendants commission of the first crime supports an inference that he is predisposed to such conduct, and that since it shared the same essential nature as the conduct underlying the charged offense, its occurrence increased the likelihood that the defendant committed that offense. However, the statute cannot infuse an uncharged offense with relevance or probative value it cannot rationally be found to possess. In order for evidence of another crime to be relevant under Evidence Code section 1108, it must have some tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged. (See People v. Soto (1998) 64 Cal.App.4th 966, 989 [ A defendant with a propensity to commit acts similar to the charged crime is more likely to have committed the charged crime than another ].) If the uncharged crime does not rationally support such an inference, then it is simply irrelevant in a prosecution for the charged one.

Does the commission of indecent exposure rationally support an inference that the perpetrator has a propensity or predisposition to commit rape? Not without some kind of expert testimony, it doesnt.[15] [P]ropensity refers to [a] predisposition or inclination to, towards, or for a particular action, habit, quality, etc.; a tendency to do something. (Oxford English Dict. (Draft rev. Sep. 2008)

50190128> (as of Mar. 5, 2009), italics added.) Similarly, predisposition is [t]he condition of being predisposed or inclined beforehand (to do something, or to a particular opinion, course of action, etc.); a prior inclination or pre-existing tendency. (Id., (as of Mar. 5, 2009), italics added.) As the use of tendency here reflects, both terms refer to a constant, or at least recurring, inclination. (See Oxford English Dict. (2d ed. 1989),

entry/50248869> (as of Mar. 5, 2009), italics added [defining tendency as [t]he fact or quality of tending to something; a constant disposition to move or act in some direction or toward some point, end, or purpose; leaning, inclination, bias, or bent toward some object, effect, or result].)

There is of course substantial basis to suppose that many sexual offenses arise from a persistent or recurring compulsion, desire, appetite, or drive on the defendants part to engage in such conduct. Such a drive constitutes propensity of a kind, and probably a forcefulness, wholly unlike the psychological processes actuating most criminal offenses.[16] If is probably safe to say that most people have not the slightest inclination to lewdly expose their genitals to strangers, no matter how perfect an opportunity might arise. Those who do engage in such conduct, at least in the paradigmatic manner shown here, typically act not from any circumstantial or situational motive, but from a persistent and recurring desire to exhibit their sex organs. Because the desire is typically persistent and recurring, it is a good bet that someone who commits this act once will be predisposed to commit it again (and again). This provides a solid foundation for a focused inference that a defendant, having criminally exposed himself on one occasion, will do so again. This in turn adds weight to an accusation that he has done so again.

But a propensity to commit one kind of sex act cannot be supposed, without further evidentiary foundation, to demonstrate a propensity to commit a different act. The psychological manuals are full of paraphilias, from clothing fetishes to self-mutilation, some of which are criminal, some of which are not. No layperson can do more than guess at the extent, if any, to which a person predisposed to one kind of deviant sexual conduct may be predisposed to another kind of deviant sexual conduct, criminal or otherwise. Is one who commits an act of necrophilia (Health & Saf. Code,  7052) more likely than a randomly selected person to commit an act of rape? Child molestation? Indecent exposure? Is a pedophile more likely than a rapist or a member of the public to commit necrophilia? Without some evidence on the subject, a jury cannot answer these questions.

Certainly these questions cannot rationally be answered, as the dissent would answer them, by drawing abstract conceptual analogies between one kind of sexual misconduct and another. That they all involve some kind of outrage against an unconsenting person (or, in the one case, a former person) can hardly justify any particular inference about the likelihood that one such activity shows a predilection for another. Most crimes can be conceptualized as outrages or impositions against one or more unconsenting persons. That does not make it rational to suppose that the perpetrator of one crime will commit another crime of a substantially different character. If anything such speculation may be even more unwarranted in the case of sexual misconduct, which may reflect highly particularized, compulsive activity rather than opportunistic, situational, or impulsive conduct. Here the dissent would impliedly justify an inference of predisposition by equating the psychic distress inflicted by a criminal exhibitionist to the physical and potentially lethal violence inflicted by a rapist. That is not a reasoned inference; it is sheer guesswork.

This is not to assert as a fact that criminal exhibitionists are no more likely than other members of the public to commit sexual assault. The expert declaration submitted by the defenseto the court, not the juryto establish the prejudicial effect of trying the two charges together showed a correlation between the two types of misconduct. But it is a weak one: according to the studies there summarized, nearly three out of four indecent exposers will not commit rape, and at least three out of four rapists have not committed indecent exposure. Whether that correlation would be sufficient to permit introduction of this evidence on a proper foundation is a question we do not and need not reach, for the prosecution made no attempt to lay any such foundation. The jury therefore had no rational basis on which to draw even the weak inference this evidence might sustain.

On the evidence actually before the jury, defendants commission of indecent exposure was simply irrelevant to the assault charge, i.e., it had no tendency in reason to show that he committed the latter offense. As we have said, Evidence Code section 1108 does not purport to make irrelevant evidence relevant. It therefore furnished