P. v. Elmakhzoumi

Filed 5/3/07 P. v. Elmakhzoumi CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

INTRODUCTION

Defendant and appellant Adil Elmakhzoumi (appellant) appeals his conviction and sentence imposed following a jury trial. The jury found appellant guilty of sodomy of an intoxicated or drugged victim. Appellant contends the superior court abused its discretion by admitting evidence of a prior sex crime. Appellant also contends the jury instructions given reduced the prosecutions burden of proof. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 12, 2003, staff at San Francisco General Hospitals Rape Trauma Center reported a rape committed at 1420 Turk Street the previous night. After a four-week investigation, police arrested appellant and charged him with one count of sodomy by force (Penal Code  286, subd. (c)(2)) and one count of sodomy of a drugged victim. (Penal Code  286, subd. (i).) The first count was dismissed and a jury trial held on the second count.

Joelle G.s Testimony

At trial, victim Joelle G. testified as follows: Joelle met appellant at a San Francisco nightclub in the early hours of December 12, 2003, and the two conversed briefly. Joelle had consumed about five alcoholic drinks.[1] Joelles sixth drink was a shot of tequila which she could not recall ordering nor anyone ordering for her. Immediately upon drinking the tequila, Joelle described she immediately sort of lost peripheral vision and everything sort of pin-holed and I really dont remember after that. She had no recollection of subsequent events at the club. Joelle next remembered waking and vomiting in a strange bedroom. She felt someone pulling off her jeans and underwear and realized her top and bra had also been removed. Joelle could not fully see, nor move her arms and legs. She next described feeling a man straddle her and hearing the snap of a condom or a spit in the hand. The man then sodomized her. Joelle managed to say: No, I dont want that, get it out of me, and to pull herself free. She then heard her assailant say Well, Ill be a gentleman and Ill leave. Joelle recognized the voice as appellants. Joelle then passed out until daylight.

After dressing, Joelle encountered appellant in the living room of the apartment; retrieved her purse from him and left. She immediately sought help from the Kaiser Chemical Dependency Recovery Center near appellants apartment on Turk Street.[2] Joelle felt disoriented; that something was terribly wrong; and, like I had been drugged.[3] At Kaiser, Joelle realized she had been raped and staff referred her to the Rape Trauma Center at San Francisco General Hospital.

The Investigation

Examination at the Rape Trauma Center revealed lesions and trauma around and inside Joelles anus consistent with forcible sodomy. The staff notified San Francisco police of Joelles condition and police responded to the hospital.

Although Joelle could not initially identify appellant, she remembered the Turk Street location. Footage from the buildings external security camera showed appellant and Joelle getting out of a taxi at around 3:16 a.m. Joelle appeared jelly-like and unable to walk under her own power. Appellant physically supported her as they entered the building. On January 14, 2004, after several interviews with him, police arrested and charged appellant.

Appellants Testimony

Appellant testified on his own behalf as follows: Appellant met Joelle at the nightclub on the night of December 11-12, 2003. Appellant stated the two conversed; smoked cigarettes together; and, ultimately, Joelle propositioned him for sex. Joelle did not appear drunk to appellant. The two left for appellants apartment and he merely steadied Joelle when she stumbled getting out of the taxi. Appellant called his girlfriend from the apartment buildings entry phone and told her to vacate the bedroom because he had brought a woman home.[4] Once in the bedroom, appellant and Joelle conversed further, undressed, and he gave her a massage. Joelle vomited, but appellant covered the vomit with a towel and continued the massage, with Joelles consent. Appellant admitted then penetrating Joelles anus with his penis. When Joelle objected, however, appellant claimed he immediately stopped, left the room and did not return. When Joelle awoke, appellant helped her find her purse and she left.

The 1998 Incident

Before trial, pursuant to Evidence Code section 1108, the prosecution informed the court and defense counsel of its intention to introduce evidence of a prior sex offense committed by appellant. Appellant moved to exclude the evidence and the superior court heard testimony outside the presence of the jury in order to determine its admissibility under sections 1108 and 352.

The prosecution called witness Heather W., who testified as follows: In March 1998, 17 year-old Heather worked as a prostitute under the alias Tasha Brown. Appellant picked Heather up in his car and, after some negotiation, she agreed to have sex with him at his Turk Street apartment for $80. At the apartment, Heather produced a condom, which appellant refused to wear. When Heather insisted, appellant pushed her down and raped her. Heather resisted and protested strongly, but appellant overpowered her. Appellant then took back the $80 and raped her a second time. Again Heather struggled, cried and told appellant to stop. Afterwards, appellant prevented Heather from using his phone and pushed her, naked but holding her clothes, out of his apartment. Heather dressed in the hallway and crossed the street to a nearby police station to call a taxi. After coaxing by a police officer, she reported the rape.

The superior court ruled evidence of the 1998 incident admissible as a prior sex offense under Evidence Code section 1108. It also found its potential prejudice did not substantially outweigh its probative value under Evidence Code section 352.

Heather repeated her testimony in front of the jury. The prosecution also presented testimony from Inspector Richard Martin of the San Francisco Police Department, who investigated Heathers complaint and arrested appellant. The jury learned appellant was charged with rape, but charges were dropped when Heather failed to appear at the preliminary hearing.

The Verdict and Sentence

On June 1, 2005, the jury found appellant guilty of sodomy of an intoxicated victim. On March 24, 2006, the court sentenced appellant to serve one year in county jail with a five year suspended sentence and probation. This appeal timely followed.

DISCUSSION

I

Appellant first contends the trial court abused its discretion by admitting evidence of the 1998 incident. According to appellant, the 1998 incident was so dissimilar to the charged offense that its inflammatory nature substantially outweighed its probative value. As such, the trial court should have excluded evidence of the 1998 incident pursuant to Evidence Code section 352. Appellant claims its admission prejudiced him, therefore requiring reversal.

A.     Standard of Review

The trial court has broad discretion to admit or exclude evidence under Evidence Code section 352. (People v. Mullens (2004) 119 Cal.App.4th 648, 658-659.) Discretion is abused whenever a trial court acts in an arbitrary, capricious or whimsical manner. (Ibid.) On appeal, we consider all of the circumstances of the trial courts decision and, upon finding an abuse of discretion, reverse only if the error produced a miscarriage of justice.  (Ibid; Cal. Const., art. VI, 13.)

B.    Evidence Code Sections

Evidence Code section 1108 provides an exception to the general rule against admitting evidence of prior conduct to prove a defendants disposition toward criminal action. (Evid. Code,  1101, subds. (a)-(b).) Section 1108 states: 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).) Under section 352, the superior court may not admit evidence when its probative value is substantially outweighed by the probability it will necessitate undue consumption of time . . . or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, 352.)

By enacting Evidence Code section 1108, the Legislature recognized the secluded, uncorroborated nature of most sex crimes and the importance and difficulty of credibility determinations in sex crime trials. (People v. Falsetta (1999) 21 Cal.4th 903, 915.) Section 1108 aids those determinations by allowing the trier of fact to learn of a defendants possible disposition to commit sex crimes. (Ibid.)

Appellant does not challenge Evidence Code section 1108, or its application to his case. Rather, he contends the superior court erred in its section 352 analysis, by admitting evidence of the 1998 incident.

C.    Analysis

1.       Probative Value

Appellant argues the dissimilarities between the 1998 incident and the charged offense are so great as to eliminate any probative value. He highlights the different natures and circumstances of the two rapes in support of this position: one incident involved forcible, vaginal penetration of a prostitute; the other, anal penetration of a nightclub patron unable to resist due to intoxication.

In assessing probative value, materiality and necessity are important. (People v. Harris (1998) 60 Cal.App.4th 727, 739-740 [review denied, April 15, 1998].) Admitted evidence must tend logically and by reasonable inference to prove the issue upon which it is offered. (Ibid.) To be probative under Evidence Code section 1108, prior sex offenses need not be identical to the charged offense, nor must they rise to the level of similarity necessary for admission under section 1101, otherwise Evidence Code section 1108 would serve no purpose. (People v . Frazier (2001) 89 Cal.App.4th 30, 40-41.)

The People offered the 1998 incident as evidence of appellants propensity to commit sex crimes. In closing arguments, the prosecution argued appellant deliberately targeted Heather, a prostitute, and Joelle, an alcoholic, because he believed women in those positions would be easier to victimize and less likely to call police. The prosecution also alluded to the purpose of propensity evidence in rape cases, noting if [a rapists self-control] wasnt working then there is a good chance it is not going to work another time. (People v. Falsetta, supra, 21 Cal.4th at p. 912 [The Legislature declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness . . . [] . . . and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.].) The 1998 incident also bore on appellants credibility, particularly his testimony about his respect for Joelles wishes and his gentlemanly conduct.

Evidence of the 1998 incident was probative and related to issues at trial. It tended logically, or by reasonable inference to prove appellants tendency to target certain women; his propensity for sex crimes; and, undermined the credibility of his testimony. As such, the 1998 incident was properly introduced under Evidence Code sections 1108 and 352. Dissimilarities between the two rapes go to the weight, not the admissibility, of the evidence, a question properly left to the jury. (People v. Mullens, supra, 119 Cal.App.4th at p. 660.) The trial court did not abuse its discretion in finding the 1998 incident probative.

2. Prejudice

Even though probative, the trial court must still exclude evidence if its potential for undue prejudice substantially outweighs the probative value. In the context of Evidence Code section 1108, we must consider a number of factors when determining prejudicial effect: the inflammatory nature of the evidence; the probability of jury confusion; the remoteness in time of the incident; and, the consumption of time at trial. (People v. Harris, supra, 60 Cal.App.4th 727; People v. Branch (2001) 91 Cal.App.4th 274, 282.) We weigh these factors, taken as a whole, against the probative value of the evidence.

(i)

Appellant characterizes the evidence of the 1998 incident as highly inflammatory because it was a full-fledged rape, whereas the charged offense hinged on matters of impaired judgment. Appellant relies on People v. Harris, supra, 60 Cal.App.4th 727 to support this contention. In Harris, the defendant was charged with molestation of two adult victims, one a mental patient under his care and the other a former patient with whom he had had an affair. (Id. at pp. 730-731.) At trial, the prosecution introduced evidence of defendants prior conviction for burglary with a great bodily injury enhancement. (Id. at p. 734.) The facts involved a home invasion, rape, assault with an ice pick and genital mutilation in a violent and perverse attack[.] (Id. at p. 738.) The Court of Appeal, Third District found the evidence inflammatory in the extreme and of a significantly different nature and quality than the charged offenses. (Ibid.)

Appellants 1998 and 2003 rapes are not as disparate as the crimes in Harris. Here, one incident involved the forcible rape of a teenage prostitute who resisted fiercely. The other, the sodomy of a victim too intoxicated to fully resist. Both incidents occurred at the same location; both incidents involved penetration of the victim. Neither of appellants acts reach the shocking level of brutality attending Harris prior conviction; but both far exceed the relatively mitigated touching and kissing involved in the charged offenses of Harris. (Ibid.)

Also unlike Harris, the jury here heard a complete accounting of the 1998 incident. The victim testified to the crime, and a police officer testified to the subsequent investigation and arrest of appellant. The Harris courts concern about jury speculation caused by limited exposition of the prior act was not present in this case. (People v. Harris, supra, 60 Cal.App.4th 727.)

The 1998 incident is not inflammatory in the extreme. Nor is it significantly different in nature and quality to the 2003 offense. Moreover, the Peoples presentation at trial did not create a risk of jury speculation. We therefore distinguish this case from Harris and hold the 1998 incident was not so inflammatory as to create a risk of undue prejudice. The superior court did not abuse its discretion by admitting it.

(ii)

When a defendant is not convicted of a prior offense, the prejudicial effect of introducing the offense in a later trial may be heightened. (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) In such cases, the jury may convict a defendant to punish him for the past crime, rather than the charged offense. (Ibid.) Also, the added step of asking the jury to make factual findings on the past crime may create a danger of  confusing the issues.  (Ibid. [quoting Evid. Code  352].)

As we discuss, ante, the trial court properly instructed the jury about their fact-finding duties and the relevant burdens of proof. The evidence presented on the 1998 incident was easily distinguishable from the charged offense and there is no suggestion the jurors did anything but deliberate faithfully.[5] The clear instructions given and the lack of any showing of jury confusion support the superior courts decision to admit the 1998 incident.

(iii)

Appellant does not argue the 1998 incident was too remote in time to have any bearing on the charged offense. The two incidents occurred five years apart. Given the seriousness of the crimes and the similarities between them, remoteness in time does not weigh significantly in favor of prejudice. This factor also supports our finding the superior court did not abuse its discretion. (People v. Branch, supra, 91 Cal.App.4th at pp. 284-285 [prior incident of child sexual abuse which occurred thirty years earlier was not too remote. While noting there is no bright-line rule for establishing remoteness, we also held similarities between incidents balance[d] out the remoteness of the prior offenses.]; People v. Ewoldt, supra, 7 Cal.4th at p. 405 [twelve years not too remote].)

(iv)

Appellant next argues the amount of time devoted to hearing testimony and arguments related to the 1998 incident was not insubstantial and adds weight to the other factors militating (in his opinion) for reversal. In total, the superior court spent approximately five hours hearing evidence on the 1998 incident. This time included Heather W.s testimony outside the presence of the jury; hearing arguments on the motion to exclude; and presenting the testimony of Heather and Inspector Martin to the jury. The consumption of time was neither insignificant, nor excessive given the length of the trial and the context of the evidence. Because we do not find the other factors had an unduly prejudicial effect, the unremarkable amount of time consumed does not weigh significantly against the probative value of the evidence.

(v)

In sum, appellant has not shown the admission of the 1998 incident unduly prejudiced him, confused the jury, or consumed the courts time. (Evid. Code,  352; People v. Branch, supra, 91 Cal.App.4th at p. 286 [ prejudicial is not synonymous with damaging . . . [] The prejudice that section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ].) Moreover, appellant cannot demonstrate the lower court abused its discretion and acted in an arbitrary, capricious or whimsical manner by admitting the 1998 incident. (People v. Mullens, supra, 119 Cal.App.4th at p. 658.) We therefore conclude the superior court properly admitted evidence of the 1998 incident pursuant to Evidence Code section 352, and the jury properly considered it under Evidence Code section 1108.

3. The Fourteenth Amendment

Appellant also contends admission of the 1998 incident violated his constitutional rights under the Fourteenth Amendment. Appellant points out the Fourteenth Amendment mandates reversal when a trial is fundamentally unfair. (People v. Falsetta, supra, 21 Cal.4th at p. 913.) In appellants view, the admission of evidence of the 1998 incident infused the trial with unfairness. As we discuss, infra, the superior court did not abuse its discretion by admitting evidence of the 1998 incident. The evidence was relevant and probative of issues at trial. The risk of undue prejudice, confusion or the consumption of time did not substantially outweigh its probative value. Therefore, appellant did not receive a fundamentally unfair trial and his constitutional rights were not violated.

II

Appellant contends the trial courts use of CALJIC 2.50.01 improperly diluted the prosecutions burden of proof, violating his Sixth and Fourteenth Amendment rights.[6] Appellant concedes this court is bound by the Supreme Courts decision regarding CALJIC 2.50.01 in People v. Reliford (2003) 29 Cal.4th 1007, but apparently raises the issue in order to preserve it for future review.

In Reliford, the Supreme Court rejected an argument the 1999 version of CALJIC 2.50.01 allowed the jury to convict on a standard lower than beyond a reasonable doubt. (Id. at p. 1016 [Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior sexual offense].) The Supreme Court went on to find the 2002 version of CALJIC 2.50.01 an improvement on the 1999 version, stating: It provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard of proof [guilty beyond a reasonable doubt] for a conviction of the charged offenses. (Ibid.)

We are bound by the decision of the Supreme Court in People v. Reliford, supra, 29 Cal.4th 1007 and find CALJIC 2.50.01 was properly delivered and did not dilute the prosecutions burden of proof. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [[t]he decisions of [the California Supreme Court] are binding upon and must be followed by all the state courts of California.].)

DISPOSITION

The judgment is affirmed.

_________________________

Parrilli, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Pollak, J.

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[1] A breathalyzer test conducted by Kaiser staff at 9:15 a.m. on December 12 showed Joelles blood alcohol concentration as 0.14. An expert witness testified this result was consistent with a blood alcohol concentration of 0.24 at 2:00 a.m. the previous night.

[2] Joelle had visited the center before, seeking treatment for alcohol abuse.

[3] Toxicology tests detected no drugs other than alcohol in Joelles system. However, no tests for date rape drugs, like GHB, were performed. At trial, a toxicology expert described GHB as a fast-acting, tasteless, odorless substance. Under its influence, a persons walking and vision are impaired; they may suffer amnesia; nausea and vomiting; targeted paralysis; or, coming in and out of consciousness. A GHB user would appear drunk to an observer. The effects of GHB last up to four hours. The prosecution presented no evidence suggesting appellant ever possessed or used GHB.

[4] Appellant and his wife, Nicole P., had an open sexual relationship at the time because she was receiving treatment for mental illness, drug addiction and an eating disorder. Nicole testified that appellant brought a drunken girl home with him and asked her to sleep on the couch so they could use the bedroom. Nicole agreed, but knocked on the bedroom door several times to interrupt appellants attempts at sex with the girl. Nicole did so partly out of concern for the girl and partly out of jealousy.

[5] The jury submitted three questions during deliberations, including requests to have certain portions of the record read back. None of the questions or requests related to the 1998 incident. The jury heard nine days of evidence and reached their verdict after less than a day and a half of deliberation.

[6] The trial court instructed the jury as follows: Now, during trial evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in this case. Okay. Sexual offense means a crime under the laws of a state or United States that involves any of the following: And in this case, contact without consent between any part of the defendants body or an object and the genitals or anus of another person. And that involved the witness known as Tasha Brown. [aka Heather W.] [] If you find that the defendant committed 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 the disposition, you may, but are not required to infer that he was likely to commit and did commit the crime of which he is accused. However, if you find by preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. If you determine that an inference properly can be drawn from this evidence, this inference is simply one item for you to consider along with all the other evidence in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. Unless you are otherwise [sic] you must not consider this evidence for any other purpose.